provision which the president agreed with us, the class act the president agreed with us on, and most recently, the ipab rules. it's time for the president to wake up and realize what the majority of americans know, the not-so-affordable care act is a violation of our constitutional rights as american citizens. mr. reed: i thank the gentleman for joining us. i would refer to a mckenzie group report that found that more than half of employers with high awareness of the impact of obamacare said in the poll they will stop offering health coverage when it becomes fully implemented as a result of their concern as to the bureaucratic pressure and the cost that this law will put on small business in america. to me that's unacceptable, i know it's unacceptable to my colleague from georgia. with this, i would like to yield to my good friend from south carolina a great member of the freshman class, mr. jeff duncan

mr. duncan: i just got a text message from my wife said my youngest son, he is 11, hit a home run, and i wasn't there. i wasn't there, because we are here serving here in the united states congress trying to make america better for my 11-year-old and for children of this generation and future generations and i believe this particular legislation that was patsed by the last congress should be ruled unconstitutional. and i think my good friend, mr. west, is going to talk about an article he wrote in a washington newspaper today and i thought it was spot on and i don't want to steal his thunder on that, but he taugs about the independent payment advisory board, this committee of 15 members that congress basically divested some

of its power over to a 15-member panel. america needs to realize that this panel will be making decisions, health care decisions for you and your family. if you are on medicare, this 15-member panel will be making decisions on what they'll pay for, what treatment you can get, how long you can stay in a nursing facility, for rehab, a lot of different things. we are divesting responsibility and decision making to a panel. this congress, just last week, passed the repeal of that independent payment advisory board. ipab as its known. we have sent it to the united states senate because under that harry reid they failed to take good commonsense legislation in the senate for a vote. but you know what? the last congress passed obamacare, they gave some of their power away to this board. and anything that board does

becomes law. and the only way congress can overturn that law is with a majority vote or a supermajority vote in the united states senate. that's 60 members that have to vote for something to vote against something that ipab does. and when i read the united states constitution, article 1, section 1, see at the beginning, this is what it says, it says all legislative powers shall be vested in a congress of the united states, which shall consist of a senate and a house of representatives. i don't see in there an independent payment advisory board at all. i see united states congress made up of a house and a senate. that's what the united states supreme court ought to rule automatically unconstitutional in this bill. we can talk about a lot of other things but that bill was wrong for america and going to cost small businesses and we may

never recover from what's coming with the full implementation of obamacare. and with that, i yield back. reed reed i thank for the gentleman's comments. the independent payment advisory board is a classic example of what they did in obamacare. it delegated its authority to 15 unelected bureaucrats. and the worst thing about it to my colleagues, and mr. speaker, the worst thing about it, is that 15-member board is not subject to any open law requirement. they don't have to conduct their hearings in public. they don't have to conduct their deliberations with public input. it's 15 unelected bureaucrats that are making fundamental health-care decisions that should be patient-centered, relationships between a patient and a doctor, but yet under obamacare and what this congress

did is delegate its authority to 15 bureaucrats to make the life and death zwigses. mr. duncan: i'm on the natural resources committee and we deal with the e.p.a. and others that make regulations regarding offshore drilling and can't do anything without some public comment period. they can't promulgate a regulation that isn't subject to a public comment period or an appeal process. this 15-member board can pass something in the back room without transparency, without public input, without a public input period and it will have the force of law, and i yield back. mr. reed: i appreciate that comment. and i yield to a great colleague , mr. gowdy from south carolina. mr. gowdy: i thank my friend

from south carolina and my colleague from georgia, colonel west, all of whom are experts on the policy of obamacare. i want to talk to you about some thing other than policy, about the law. i will concede up front, having health insurance is a wise idea. having health insurance is a really, really good idea. walking over from the longworth office building a few minutes ago, i passed two dozen people who were out jogging and i can't help but conclude that exercising is a wise idea. but congress has not mandated exercise, not yet at least. the week's not over yet, but so far we have not mandated exercise despite the fact that it is a good policy. and mr. speaker, i couldn't help in talking to my wife tonight to

be reminded that remembering our spouse's birthdays is a wise idea. so far, although the week isn't over yet, we need to remember our spouse's anniversaries. there is a difference between being a good idea and being a constitutional idea. because, mr. speaker, what my question is for colonel west from florida that i will ask initially and i would like him to answer it is can congress make you eat beats because beats are good for you, mr. speaker. what you eat matters. can congress make you eat okra or cabbage? if all we are here to talk about is whether or not something is a good idea and there are no constitutional limits to what congress can do, then my question is, why not?

why can't we just debate this on the basis of public policy? and the answer is this, because we have a constitution, which is the supreme law of the land and the constitution has specific powers of what congress can and cannot do. and congress can regulate commerce among the several states. and that's what this administration will be arguing this week, that that one phrase, that congress can regulate commerce among the several states gives this body the power to force everyone to purchase a private product, that being health insurance. so my question to you, mr. speaker, is this. if health insurance is a good idea, how about life insurance? because heavens know we don't need more generational debt in the country. it is not fair to pass on debt to subsequent generations.

why don't we mandate before this week is done, why don't we mandate life insurance? and i have seib study after study after study, overall health. why don't we mandate before the week is over with, mandate that everyone must purchase dental insurance. if not, why not? mr. speaker, as you know, i was a prosecutor in a former life, so i took great note of two supreme court cases, lopezz and more ison. and in pope ezz, they said we don't want guns in junior and high school campuses. and the united states supreme court said, congress has no business regulating the campus of high schools and junior high schools. and mr. speaker, congress also,

and this issue is near and dear to my heart because i have struggled with the issue of domestic violence. we have struggled mindly with that. so congress passed a federalized violence against women act and united states versus morrison, they said that is a laudible public policy but the constitution doesn't give you the power to sell the several states how to handle domestic violence and struck it down. we've got to somehow find a way to separate what is good public policy from what is the law of the land. because mr. speaker, i will tell you this, if the supreme court says that congress can make you purchase a private product like health insurance, then i beg someone to tell me what are the limits to what we can tell people to do. can we make them exercise?

we all know that's good for you. if i have to subsidize the health of people who are obese or hypertension, why can't i make them exercise? because this is america and congress can't make you exercise, they can encourage you to do it. and congress can't make you buy dental insurance and congress can't make you buy life insurance or exercise or get out of the rain when there is lightning. there are a lot of things that congress can't make us do. and if the supreme court says that they can make you purchase health insurance. there are no limits to what this body can make its citizens do if this law is upheld. and i thank the gentleman from new york and i thank my other colleagues. mr. reed: i thank the gentleman for coming and sharing the passion and what we are talking about and we are talking about

obamacare and constitutionality and federalism. and it reminds me over 200 years ago, our founding fathers had the brilliance, the vision to recognize that the federal government is a limited federal government. the power of our government rests in the people, not in the federal government. the power of our government represents in the local and state entities that are closest to the people. i firmly believe in the 10th amendment and believe that the governments that are closest to the people are the best to be in the position to regulate and govern those people. we should respect the u.s. constitution and the limited powers that are enumerated in here and recognize -- and i hope that the united states supreme court joins me in that position and recognizes that there are limits to the federal

government, the interstate commerce clause has limits. and it's not open-ended in order to force us to purchase health insurance for the sake of forcing us to engage in commerce in order to more effectively regulate interstate commerce. and i so agree with the gentleman from south carolina. if that is the holding of the court, then the federal government has no bounds. the federal government will control every ounce, every corner of our lives on a day-to-day basis and with that, i yield to the gentleman from florida, mr. west. mr. west. mr. west: i thank my colleague from new york, mr. reed and mr. gowdy and mr. duncan and my brother from georgia and also my colleague from the great state of arkansas.

mr. speaker, very simple. the supreme court has begun to consider the patient-protection affordable care act. the high court will pour over article 1, section 8 to pour over the words that congress shall have the power to collect taxes, duties, and exices to pay for the debts and pay for the common defense and welfare of the united states, to regulate commerce with foreign nations and among the several states and with the indian tribes. the 2012 supreme court must determine whether the founders had any intention of mandating the behavior of private enterprises and american citizens. to me, the answer is obvious, absolutely not. our nation was founded on the declaration of independence, freedom of choice and a free market are at the core of our nation's soul. a governmental mandate for the behavior of individuals and

private enterprises is against what our founders intended. the process perfect of having an unelected panel of bureaucrats determining decisions about our individual health is perhaps the most personal and intimate intrusion into our lives. this concept is absolutely absurd and dangerous law which surely ranks with the grievances laid down 236 years ago in the declaration of independence. grievances he has forbidden governors to pass laws of immediate and pressing importance unless suspended in his openings operation and when suspended he is neglected to attend to them. he has elected officers and sent officers to harris our people and eat out their substance and subject us to a jurisdiction foreign to our constitution and

unaged by our laws, given his assent, for imposing taxes on us without our consent, for taking away our charters and abolish our fundamental laws and the forms of our governance. that's why, mr. speaker, each and every day, i carry this declaration of independence and constitution right here next to my heart, because in january, 2011, a florida federal judge ruled the individual mandate unconstitutional, stating never before has congress required that everyone buy a product from a priferte company essentially for life just for being alive and residing in the united states. if the government has the if the government that is the power to compel an otherwise passive individual into an transaction, it is not pipe bollic to say congress could do

almost anything it wanted, just as my colleague from south carolina articulate sod well. today, this is being attempted before our very eyes. with obamacare, insurance company will be -- insurance companies will be forced to provide contraceptives free of charge. next will they be forced to provide surgical procedure fleece of charge? perhaps supermarkets will be compelled to offer apples and carrots free of charge to ensure children have access to healthy food. beyond asserting control over private individuals and enterprises, obamacare circumvents the foundation of our own legislative structure. at the heart of the affordable care act is the independent payment advisory board, made up of 15 unelected officials, appointed by the president, for one simple purpose torque reduce medicare spending. the ipab would be tasked with and given the not to reduce

costs of the government by, among other things, limiting reimbursement to doctors. it doesn't take a brain surgeon, mr. speaker, to recognize that this will lead to more physicians leaving the medicare system, redeucing access to care for our seniors and limiting available treatments. but this isn't the most frightening part. any recommendations that the ipab automatically brings forth becomes law. the only way around this unprecedented amount of power for washington bureaucrats is an act of congress with a 3/5 supermajority in the senate, in other words, the unelected ipab, appointed by the president, essentially becomes its own shadow legislative body. fundamental structure of our government work three co-equal branches and a careful system of checks and balances is being jew surped. our freedoms and liberties are being chipped away bit by bit.

our country is being transformed, step by step, incrementally, into a strain gently controlled bureaucratic nan phi state. what i find most frightening is that a portion of our populace willingly dons these shackles and like lemmings will march this great constitutional republic off to its own demise. perhaps some americans are simply unaware of the exorbitant monetary costs of this governmental behemoth. the numbers don't lie, mr. speaker, and they are dangerous. $1.76 trillion from the american taxpayers to pay for obamacare over 10 years. nearly double the $940 billion that was forecast when the bill was signed into law as a previous speaker said, we have to pass the bill in order to find out what is in it. $52 billion in new taxes on businesses as employers are forced to provide health insurance.

$47 billion in new taxes on drug companies and medical device makers, costs that will surely be passed down to patients, particularly our senior citizens. families earning more than $250,000 a year will see more taxes as obamacare adds a new tax to investment income, including capital gains, dividends, rental income, and royalties. 16,000 new i.r.s. agents, 159 in government agencies and bureaucracies, $575 billion of new cuts to medicare. insurance premiums expected to increase 1.9% to 2.3% in 20134 and up to 27% by 2023 because obamacare adds a premium tax on health insurers offering full coverage. the act is unworkable and

destined to fail. one need only look back to the last big government program from affordable program. our colleague on the other side, barney frank, brought forth the affordable housing act and it, in less than a decade, managed to weaken the housing market, kill financial institutions and wipe out the net worth of millions of americans system of what makes anyone think government interference in health care will be effective. obamacare is unconstitutional. as a matter of fact, it's anti-constitutional. it violates the great, inalienable rights that thomas jefferson said do not come from man, but from our creator, life, liberty, and the pursuit of happiness. it violates our individual sovereignty and most certainly, it is one of the most awful pieces of american policy. so mr. speaker, i pray that after next week's supreme court decision, or whenever it comes,

that this patient protection and affordable care act becomes the most short-lived piece of american -- of legislation in american history. i yield back. mr. reed: i thank my colleague from florida. i see the gentleman from georgia would like to weigh in? >> after listening to my colleague from florida, he just drives home the point that power corrupts and absolute power corrupts absolutely. you talking about a panel that will have control over roughly 1/6 of the united states economy. 1/6. that means more power in washington and i'm going to tell you, ladies and gentlemen, whether you're a republican or a democrat or an independent, the more power that rests in this house, the less liberty you have in your house. we're here standing up for your personal freedoms, your individual liberties, we're working to make sure you've got a health care system that will continue to support you, and your children. we have over 300 children and

grandchildren, we're the parents and grandparents of in the freshman class. with that, i yield back. thank you for share yurg time. mr. reed: i thank the gentleman, the president of the freshman class, for that input. what i'd like to say to the gentleman from florida, quoting the numbers, and the numbers are real, just recently, the congressional budget office, the independent bean counter of washington, d.c., said that obamacare, the real price tag under obamacare will be upwards of $1.76 trillion over 10 years, added to our spending in washington, d.c. we're at $15.6 trillion in the hole and we're going to add another $1.76 trillion of spending to that price tag, to that debt? it's not sustainable. we have to be -- we have to do better. we in the house of representatives on the republican side do have proposals and solutions that

will replace obamacare and go a long way to turning that cost curve and our ever-increasing cost of health care in america. what i would like to do is go beyond the numbers. i can tell you from firsthand experience, and a lot of my colleagues believe this just as i do, when i go back to my colleagues in upstate new york, i talk to people on the front line. just recently, in the last month and a half, i went to a business just north of cornell, new york, a small electronics company that's been struggling day after day, just trying to make ends meet, has about 40 employees, 48 employees in his operation. as i'm meeting in his office, as i'm talking to him about the future of his business, he stated to me, because of this law, the affordable care act, and its 50-employee threshold for the additional bureaucracy and requirements and taxes and

penalties that washington, d.c. is putting on that business, if he goes over that 50 employee threshold, he told me to my face that he will keep his employee rolls at 48 and not venture down the path of hiring two more individuals, those are two more families that will be getting a paycheck and putting food on their table and having the private capital to put their kid through college because of legislation coming out of washington, d.c. mr. speaker, we can do better. we will do better. and november, 2010, with my freshman colleagues, was the start of that better governance for all of america. i'm proud to be part of this freshman class. at this point in time, i would love to yield to a fellow colleague of the freshman class, mr. griffin of arkansas. mr. griffin: thank you. i appreciate it, appreciate you putting this together, i'm happy to come over here to the floor of the house to talk about the unconstitutionality of obamacare. but before i talk about the

constitution and obamacare, i want to make really clear to folks who may be generaling us tonight that all of us here believe that we need serious health care reform. in the united states. we know that we need health care reform. there are many parts of our health care system that we need to reform so that it is more efficient, so that we can deal with the rising costs. we get that. what we don't need is the health care reform that we got. we are not against health care reform. we are against the type of health care reform that we were given with obamacare. a government-centered, costly, bureaucratic health care law. what i favored, what i think a lot of my colleagues favor is a patient-centered health care reform that focuses on

innovation and reducing costs, allow manager competition across state lines for insurance companies. so that they can drive the cost down. look for ways to provide quality care, to continue to provide quality care to americans while reducing costs. i just want to make that really clear. we understand the need for health care reform. we also understand the need to reform medicare. we know that we must reform it to save it. the president's health care law as we have heard some others refer to tonight doesn't save medicare. it makes changes. it takes $500 billion out of medicare. and he set up an independent board, as we heard, that will decide where cuts should be made, instead of reforming,

instead of looking for ways to innovate, it just cuts. and ultimately rationing medicare. that's what the president's plan does. we have a better alternative, a patient-centered alternative. but we're here tonight to talk about the law that we have. the law that i and many of my colleagues voted to repeal. and that is what some call obamacare, the president's health care law. and we first have to start out, we're talking abthe constitution, recognize that this constitution sets limits on the power of government. if it does not set limits on the power of government, then what good is it? it's not worth the paper it's written on if it doesn't set limits on government. and that's exactly what it does. that's why we have a

constitution in the first place. the founders, people that started this great country, they knew, they knew what government overreach could do. they knew what government power out of control could do. and so the founders were very specific in providing limitations on government in this document. and when enumerating the powers of congress, the constitution clearly presents the power to regulate as separate and distinct from the power to raise and create. let me tell you a little more about what i'm talking about here. the issue of whether obamacare is constitutional or not boils down to the commerce clause. the commerce clause of the constitution. it gives the federal government the ability to regulate commerce.

when setting out the powers, the constitution clearly talks about the power to regulate as separate and distinct from the power to raise and create. congress, for example, was fwitch the power to create money and then regulate it. congress was given the pourer to raise an army, and then the power to regulate it. but that's not the case with commerce. that's not the case with doing business. congress was only given the power to regulate commerce, not raise it or create it. . the power to raise it or create is not there. the military, the power to regulate, doesn't include the power to raise it. the bottom line, no power to

create business transactions where they don't exist. as one of the gentlemen who was here earlier said, where does it end? if the federal government can make you buy insurance, health insurance, can they make you eat your broccoli? can they make my two-year-old and four-year-old eat their broccoli. i happen to love potato chips, and they're probably not the best thing for me. can you stop me from eating them? can the congress of the united states have the power to say, we got to cut down on the number of chips people are eating? i say no. congress does not have the power to do that. but you know what? a lot of folks would say yes.

using the same reasoning that they believe they can make you buy health insurance. and that's ultimately what this debate is about. yes, it's about health care, it's about the unconstitutionality of obamacare, but more broadly, it's about the federal government reaching in to your life and telling you how to live it, because the federal government thinks that it knows best. the federal government thinks it knows what you should eat, when you should eat it, what kind of insurance you ought to buy. now, i can't speak for the founders but having believed having read this document and many others that were around the founding of this country, i've got to believe that they would

be outraged, outraged if they knew what was going on in their name. if they knew that the federal government was claiming to have the power to do the things that it claim it has the power to do. so, mr. speaker, this is a critical week in our history, because the arguments that are going on at the supreme court and the decision that comes out of the supreme court on this issue will be monumental. i would say for me and the people that i represent in arkansas that i talk with when i go home, we believe, we believe that this constitution

establishes a limited government . and no matter how you interpret it, no matter how you interpret it, you have to agree that it sets limits and the federal government cannot, cannot force you to do whatever it wants you to do. i yield back. mr. reed: i thank the gentleman from arkansas and at this time, i yield to the the gentleman from georgia. mr. scott: that's the difference in a recommendation and a decision. we put together many panels to make recommendations to congress and congress can take action or not to take action. this bill flips it on its head and a panel is going to have people make the decision. they are taking away the right

of the american citizen to make the decision for themselves, completely contrary to what has been done in most cases in the past. this isn't a recommendation, ladies and gentlemen. this is a decision that is going to be made for you by bureaucrats in washington, d.c., and i'm going to tell you just like a lot of americans, republicans and democrats and people in washington need to mind their own business and leave americans alone. people are fed up with it. more power in this house means less individual freedom and liberty in your house. >> i wanted to comment on something you said there. it might be a different debate if this federal government operated efficiently and ran everything perfectly, but we

don't have a track record to brag on when it comes to managing this sort of thing. what makes folks thing that all the answers are in washington? where is the evidence of that? i don't think you can point on it. when you let states do what is good for them in particular and experiment and innovate, try new things, serve as laboratories to learn the best way forward, that's what succeeds. the idea that one size fits all, that's not patient-centered, that's government-centered. mr. reed: reclaiming my time.

i so agree with you, because you are absolutely right. as you were expressing yourself to this chamber and this floor, you made a comment that since when does the federal government know best? and there are repeated provisions in the 3,000 pages of obamacare that clearly show that when the 111th congress passed this legislation, they truly believed that the federal government, washington, d.c., knew what was best for every individual in america coast to coast, north to south, east to west. you only have to look to the provision that deals with medicaid, because we're talking a lot about medicare and ipab and the provisions of obamacare that deal with that, but look at the provisions dealing with

medicaid and maintenance of efforts provisions in the law. and what that says, madam speaker, is that on the day of the effective day of obamacare, the states have to maintain the same level of service under its medicaid program as were in effect on the date of the effective date of obamacare. what does that mean, madam speaker? what that means to the state of new york? the state of new york offers where all of my constituents know, is the cadillac plan of medicaid services. we offer every authorized program that the federal government allows under medicaid. and actually, it's so well known, that with the influxes of people coming to new york state because of the medicaid medical services we provide. and what is that doing to new

york state? in the eight counties i represent, over 100% of our real property tax levy, because we split the medicaid share 25%-25% between the state and local government so our county tax property bill is equivalent to 100% that goes to cover those medicaid services for our constituents in those eight counties. every county tax bill that goes out, every dollar of that tax levy goes to cover the new york state 25% local share of medicaid costs. and what does obamacare do? and it tells our elected officials, you are handcuffed and you cannot change the level of services under medicaid. and what is it doing to other states, such as texas, that doesn't authorize all of the authorized programs at the federal level for medicaid

services? it forces them to raise up and maintain their level of services under medicaid. and i have talked with representatives from texas and they point to new york state and they say new york state should be the example for which texas should not follow. we should allow the state and the elected officials dual elected to represent the local citizens in those states, the ability and discretion to tell what's best for their state's citizens, not have a one-size-fits-all requirement coming from washington, d.c., like the maintainance provisions under obamacare, dictating across the country that's what's good in new york is good in california, in texas and everywhere else. each state is unique. and that is the wisdom and vision that our founding fathers articulated when they recognized the 10th amendment in the united

states constitution and have the federal government be a limited federal government, that its rights are only those enumerated in the constitution. and if it isn't so enumerated in the constitution, those powers are retained by the states and by the people in those states, not the federal government. and i notice my colleague from georgia has another -- and i yield. mr. scott: you talk about the individual states out there and the 50 individual states. you know, i'm from georgia and the second amendment is extremely important to us in georgia. the right to keep and bear arms. and i tell you, we haven't passed a law on the house floor and passed by the senate and signed by the president that says every american should own a gun. not should own a gun, but must own a gun or firearm, if you

want to be proper about it. but again, it's those constitutional rights that we as americans have. it's not for the government. it's for us as individuals. it guarantees me as a citizen. that constitution guarantees me as a citizen that nobody in washington can take those things from me. our forefathers that absolute power crupts. they gave us the constitution. they knew with the house and senate being political bodies and the president being a political body, that eventually something like this would happen in this country and so they gave us a court. they gave us a court with one duty and that duty is to protect the rights of the individual citizen and let's hope and pray that the court does its job and upholds our constitutional rights. and with that, i i yield the

remainder of my time to my colleague from new york. mr. reed: i thank the gentleman for joining us on the floor on this critical issue that we face here in the united states house of representatives. what i would like to say in closing, madam speaker, is that there are many problems with the affordable care act. there are many problems with obamacare. not least of which is the constitutionality of that law. and let us hope that the united states supreme court renders its verdict and that verdict is just and recognizes that this is an overreach of federal power and strikes down this law. make no mistake about it, madam speaker, we in the house of representatives, recognize that there is a problem with health care in america and those ever increasing costs that are

burdenening americans across the nation needs to be dealt with. and the solution, and i know we'll have this conversation on another night, madam speaker, that the solution that we come up with must be based from the patient point of view, from the individual's point of view, from the patient and the dock tors' relationship, not from the perspective of washington bureaucrats, not from the prospective of a hospital administrator, but from the private relationship between patients and doctors. and i believe that if we agree to that principle, we will solve this problem. but in the end, obamacare, the affordable care act does not accomplish the mission and needs to be repealed. and we'll stand for the repeal today and tomorrow. with that, we yield back the balance of our time.

the speaker pro tempore: the gentleman yields back the balance of his time. does the gentleman have a motion? mr. reed: i move to adjourn. the speaker pro tempore: the question is on the motion to adjourn. those in favor say aye. those opposed, no. the ayes have it. the motion is adopted. accordingly, the house stands here when members return on tuesday. up next, the director of the

centers for disease control and prevention talks about global efforts to prevent hiv and aids. then the supreme court began three days of oral arguments on the health care law. the court looked at whether it has the authority to hear the case. that is coming up later on c- span. on tomorrow morning's washington journal, we continue our look at the health care oral arguments. we will be joined by -- bebel recap monday's arguments and look at the -- they will recap monday's arguments. we will also hear from two law professors. washington journal airs live every morning at 7:00 a.m. eastern on c-span. last week, the director of the centers for disease control and prevention top about how u.s.

contribution to global hiv and aids efforts tied together with the u.s. domestic response. the eighth 2012 conference will be held in washington, d.c. this is about an hour and 15 minutes. >> good afternoon. we will begin. welcome. thank you for being with us. i am steve morrison. we are thrilled today to be able to host dr. thomas freeden, director of the centers for disease control and prevention. i want to offer a special thank you before moving into his brief opening remarks. to susan mcclure from cdc and her team. and from staff here.

the was a lot of effort invested. we are bringing you together today to look at hiv and aids and the accomplishments up until now. it bit of a look backward and up until the present as to what has happened in terms of the epidemic and efforts to bring that under control. and to focus on where things stand today in the united states as well as globally. we will hear more from the doctor on how to deal with the excitement around the new science of prevention. this is a very remarkable time. it is remarkable we would find

ourselves in a situation when the secretary of state comes before a scientific audience here in the united states to talk about a very public health based and just about an 83 generation. surely there after the president on world's a day -- aids day . an unfinished business and the challenge that is there. moving globally from 4 million to 6 million. it is an ambitious goal. we are also going to be looking for today, with respect to the aids 2012 international conference to be here in .ashington on july 22-27 spir

it will be a dramatic and very promising event. the cdc brings a unique set of assets. we are all familiar with dr. frieden's role in leading the effort in new york city. his continuation in those efforts in india for five years and after returning to new york city where he led a remarkable period of intervention -- innovation, spanning anti- smoking efforts, controls in trans fats and other content. the very distinguished

accomplishments. we also know that the cdc brings very special strengths in its evidence based in its public health plans. in terms of innovation and training efforts at home and abroad. it is really remarkable also looking back how much the hiv/aids epidemic has changed the cdc. tenures ago -- ten years ago, the international programs were in their early stages and it was a small and exceptional component part of what cc did at that time -- cdc did at that time. now it is a part of the dna of the organization. i want to draw your attention to the fact that next week we will be convening here are march 28

for an event. we have passed out a fire from that. it continues his series of activities looking court to aids -- forward to aids 2012. a study will be published, and analysis.l an she will be joined by a co-chair of the 2012 effort. we will be looking at the history of the international aids conferences and what we can expect as we go forward. that will be webcast live midday.

we expect a strong turnout here. we have 100 persons joining us on line for this event today. we are fortunate that c-span-3 has joined us today. please join me in introducing our guest of honor. i want to thank everyone joining us online. we're fortunate that c-span3 haseveryone, join me in welcoming dr. frieden. >> thank you. i asked for really excellent, cutting edge work you a done in global health, and i also want to thank all of the non- governmental organizations and the individual advocates who helped us get to where we are today in hiv. we are all committed to making further progress. we will take a minute to look back at how far we have come.

i will share with you my perceptions on the hiv epidemic, where it fits the global health, where it fits in policy, and also in the health-care system. is possible to forget just how bad the hiv epidemic has been. hiv and has already killed in this country as many people as have died in all wars since the civil war. hiv continues to be -- was a much worse light on countries struggling with public health issues. i remember a woman i met in nigeria a couple years ago who was carrying twins and she said to me, i am hiv-positive, but i am on treatments, and i feel great.

and my twins are hiv negative, and they are going to grow up without aids because of the american people. so, you go back and tell people how much we appreciate their support, because it is our life. so, we have come a long way, but in response to the epidemic, our response to the epidemic, 2012 is truly a tipping point. i would point to three key trends in this area. first, we are seeing increasing coverage and decrease in cost. we are able to treat more people with the same amount of money. second, there is increasing recognition of global shared responsibility and accountability.

this is an issue that the world have to take responsibility for. not only the u.s., not only the countries in which the epidemic is hitting harder, but countries throughout the world who can do more to address a check the. -- hiv. and third, new evidence that we can make a huge leap in treatment and prevention. for some years, we had a huge fight. treatment or prevention. now we know treatment is prevention and it is a critical combination. we know prevention of mother to child infection and involuntary circumcision has a population impact. we note infection rates can be driven down. this is crucially important, and i think informs our response. i want to take a moment to describe to you the diverse

work that cdc does all over the world. we have fantastic staff in atlanta and around the world. we have nearly 2000 people working for cdc around the world, and we have another 10,000 people-plus in atlanta that can be dispatched to any area that needs expertise. will recognize there are huge challenges. over the past year, i have met with our staff to look at the programs and a wide range of areas. haiti, we will be able to improve the ability of the government and local institutions to respond to a cholera epidemic, preventing more than 9000 deaths from cholera. much more needs to be done, and we are lacking be resources to improve water and sanitation, but we have made tremendous progress there.

i have just returned from nigeria where it is sobering to remember that there is an estimated 100 million cases of malaria each year, and 3000 deaths from malaria each year, where the prevention of maternity to child transmission is not been improved and polio continues to be a major problem. but we are optimistic we will see significant progress their. -- there. from kenya, where we see a terrific examples. more than two-thirds of all tb patients in kenya are being tested for hiv and if being found positive are put on and cite retro -- on anti-retro viral treatment. a very rapid scale up in just a

couple of years. so, showing there can be an effective scales. -- scale up. in russia, where we have worked on vaccination and immunization issues. in china, where we have had that country open up and look get influenza. they are posting on the internet every single week the strains of flu that they are finding, so that the whole world benefits from that information. in brazil, where we helped the country designer remarkable intervention that is going to scale up physical activity, in an effort that i think is unparalleled in the world. that are going to spend their own money to see whether it is possible to get people moving on a mass basis. in vietnam, or we helped support the development of public infrastructure -- where we helped support the development of public infrastructure.

helping them in areas like motorcycle helmets were they have seen a dramatic reduction in injuries or influenza where they remain high risk. or india where we have been able to work with the world health organization to make remarkable progress on polio. we have gone 14 months without a case of polio. it is the result of enormous social activism. enormous focus and accountability. and a $1 billion investment by the government of india for polio eradication. but hiv remains the leading global cause -- the leading global challenge in terms of infectious diseases. we have global disease detection

activities of round world. we have immunization of policies to help countries make sure they have effective policies and programs. we have influenza tracking so we have an early warning system to know what is happening and to know what could be a terrible pandemic. we have been -- we have the president's malaria tracking initiative to make sure our programs have high impact and documented. we have turned out to thousand 500 and highly trained epidemiologists in five years -- 2005 hundred highly trained epidemiologists and five years to document and discovered disease, design programs, employment programs, and see that those programs are working. and we have been working with the department of defense in

strategic areas, and of course with the global aids program. we are seeing now signs of progress. hiv remains the biggest infectious disease challenge of the world. there have been 65 million hiv infections and 30 million deaths since this epidemic started. in 2010 alone, there have been 1.8 million deaths. said the number people infected continues to grow from 34 million and up. but the graphic you see here shows a 20% reduction in hiv incidence, and a 27% reduction in sub-saharan africa. learning lessons from around

the world and applying them wherever they can be applied is crucially important. h.i.v.-related mortality is also declining. one of the things we have been taught is that public health is at its best when we see the faces and the lives behind the numbers. these numbers are coming down, but they are still shockingly high. at the peak of the aids epidemic in africa, hiv accounted for two-thirds of all adult deaths. can you imagine what that would be like in our own village? our own community? there were communities in which the only business that was increasing was the funeral business.

there were communities and in which the hope that could be progress was disappearing. the number of health-care workers was a declining because hiv was affecting their own ranks. and the possibilities for progress seemed remote. we now have the ability to make big change and significant progress. the u.s. government has called for an aids-free generation. meaning virtually no child will be born with hiv infection, that adults living with hiv do not progress to aids, that there is a rapid decline in hiv incidence, and that combination prevention can turn the tide on the hiv epidemic justice combination antiviral treatment can turn the tide on infection in an individual.

using the an anti-viral treatment as prevention, voluntary medical mayor -- medical male circumcision, and correct and consistent condom use. what we are seeing in this call for an aids-free generation is the translation of evidence into policy and policy into action. we are hoping for more progress to an hiv vaccine, but we do not have to wait. president obama has said on world aids day "we will be this disease." this is an ambitious global challenge to all of us. what we're seeing is a goal to reduce the transmission by 90%,

but to meet the goals of strengthening systems, reducing maternal mortality by least half. and ambitious goals, three numbers that we need to keep front and center in everything that we do -- 6 million on treatment, 1.5 million women treated to prevent mother to child transmission, and 4.7 million voluntary mail circumcisions. -- male circumcisions. those numbers are ambitious. we have 21 months to achieve the. but i am confident we can. at home, we have for the first time in national hiv/aids strategy for this country with the purpose of reducing infections, increasing assets -- access to care, reducing h.i.v.-related disparities in health care and quality, and achieving a more coordinated response to the hiv epidemic.

and let's not mistake -- we have significant challenges in this country. 1.2 million people are living with hiv approximately. 1 in five do not know that they have hiv. another 120,000 or so know they have hiv but are not on effective treatment. we are seeing an increase in hiv incidence with young men who have sex with men in african-american communities. we see more than 60% of new infections occur among men who have sex with men. when we look at the accountability, only 28% of all americans living with hiv have the viral dose of drugs. that means their own health is at risk and their partners are at risk.

so, we have a long way to go, but we know that significant progress can be made. san francisco for example has scaled up prevention and are seeing significant reduction in incidence of hiv. at cdc, we're taking a new approach to our prevention work. we are saying let's make sure in this country for our prevention dollars that we are sending our resources to places that need it most, where the programs work the best and the population is at highest risk. that means we will ship their funding -- we will shift our funding and determine our funding base and the number of people living with hiv and ensure that three-quarters of all resources we send out go for four key activities. scaling up testing and linkage to care, comprehensive -- ,

condom distribution, and initiatives to promote accountability, especially helping health-care workers in sure we are controlling it. will not be able to effectively manage the epidemic and help people be healthy unless we systematically track these numbers. in this country, we have seen progress. 11 million more americans know they have got it ended before. three-quarters of those were high risk. we've seen 90% decreases in mother to child transmission and transmission among drug users. and blood borne transmission, 90% or more. those same levels of excellence can be seen globally. global prevention can reach that kind of impact on the sexual transmission of hiv.

not only will it save lives, but it will save money as well. we know we can drive down health care costs. immunizations cost $3 for every $1 we spend for the health-care system alone and $10 for society. a single patient living with hiv and has a lifetime cost of living in this country of about $400,000. if we can drive down infections, we can improve the cost curve of caring for hiv. effective prevention intervention are creasing -- are increasingly understood. we know pmtct is an effective, but we are at less than 50% coverage globally.

we know treatment as prevention has been documented to decrease transmission by 96%. this is remarkable progress. if you were on treatment, not only will you live longer and healthier, but you will be 96% less likely to spread hiv to others. that is a team changer in terms of our understanding of how the epidemic works. but even with a modest level of -- we're still in only 47% coverage. male circumcision is 60% effective in reducing transmission, but we have seen a can be scaled up. kenya, for example, scaled up remarkably.

they will not -- they will have an enormous benefit from that effort in fewer transmissions, fewer businesses, more productivity in future years. the hiv vaccine -- we are still a long way from army to become a but we need to continue to work on that, because it will be from're still a long way where we need to be, but we need to continue to work on that, because it will be important. and increased exposure to prophylactics. this is the data from the high uganda on the effectiveness of circumcision. as time went on, it did not go down. actually went up. 73% of effectiveness over a longer time period. there is tremendous effectiveness in scaling up these interventions.

what we were able to do is to increase partnering to ensure the efficacy increases, cost increases, and sustainability increases. we have seen systems established, and when systems are established, drug costs up fallen, but there have been economies of scale. we have a transfer services to local partners, and cdc is providing services to our industry partners and others. we have expanded team-based care, and teen-based care is an important initiative -- team- based care is an important initiative. and we can learn more about this in this country as well, making sure every member of the health-care team is used to their fullest potential, to

ensure we have people in the health-care system who are working in ways that can support communities. we are also seeing in africa and other countries take on a greater financial portion of treatment. this is a global shared responsibility. they have done in an enormous amount -- they have done an enormous amount. other countries, countries that are affected by the epidemic as well as other donor countries and lower income countries need to do more. this slide shows a model of different scenarios of what may happen in swaziland if we scale up access. you see the number of new infections per 100 person years. the most available model is about 2.54 every person years.

if we do nothing, it will increase. if we expand medical circumcision, that will fall. if we do not do either, it will increase. but if we look at expanding treatment and circumcision, we can see substantial reductions from 2.5 to 1.5. you see those levels going down, going up, all the way below to 1 per 100 person years. we think it is possible to drive down incidence of hiv but prevention. time will tell how effectively they can be done in the field and what the epidemiological impact will be. all the estimates and models tell us -- and it interesting

suggested evidence indicates -- that we have tremendous potential for significant progress. at cdc, we're delighted to be part of the efforts to make that progress. at cdc, we do a lot to develop capacity locally, and there are parallels between what we do in this country to support public health, and what we do globally to support public health. would provide technical guidance, technical assistance, as well as direct funding. we have technical experts in more than 75 countries working on hiv and the number of other issues. we have close partnerships with ministries of health and other local organizations. applied epidemiology is critically important, helping countries look at and act on their own information.

they have postulated ministries of health as well as non- governmental organizations devoted to promoting progress in other countries around the world. they are to set up systems, monitor systems, ensure the systems' can continue for many years to come. we also use a large number of host countries whose builds we rely on to interact effectively with local organizations. we have cooperative agreements with 63 ministries of health, developed carefully over many years with careful safeguards and technical assistance so we can gradually and steadily improved the ability of these countries to detect and respond to hiv and other health threats. we worked to establish the african society for medical accreditation.

we improved laboratory networks and quality. improved health security for helping to build institutions like cdc that can work as it settles for it -- sentinels for help. countries around the world are building programs like cds same, and -- like cdc, and countries in africa are doing the same. the risk anywhere is potentially a risk everywhere. to spread it is something that only takes days or weeks to spread from one country to another and can be very costly. we are all looking forward to the international aids conference in july in this city. it is a welcome return to the

u.s. cc is proud to play a key role in that change. -- cdc is proud to play a key role in that change. what a world of difference two decades makes. i trained as an internist in infectious disease in the mid- 1980's. my training and experience was fuelled by caring for hundreds of people dying from aids for whom i could do virtually nothing. when i left the u.s. to go to india for five years in october of 1996, it was just at the

point when combination and died-retrovirus treatment was coming into widespread acceptance. ipad two friends or dying from aids, and i figured -- i had two friends who were dying from aids, and i figured i would never see them again. both of them are working full time today. two decades makes an enormous difference. we can expect progress at the international aids conference, and we also need to recognize that if it were not for the advocacy in hiv, we would not be where we are today. not just in a chevy, but in other diseases. -- not just in a tidy, but in other diseases. -- not just in hiv. we celebrate the progress. we celebrate the ability to respond to the needs of the community with an entire partnership of commitment. we have the national hiv/aids

strategy in the u.s., and the rolling out of that strategy, despite the enormous fiscal constraints the u.s. government is under, we have increased our budget every year. we will be looking at the scale of effective treatment. we will be looking forward to the reauthorization of the -- program, and we will be focusing on the translation of science to policy and policy to action. we'll be looking at new technologies. we will be looking at new ways to do circumcision at a global level. will be looking at pre exposure prophylaxis and the impact of treatment on access and death

rates. i think those are very exciting possibilities. we know that treatment works on prevention between one individual and another. we are going to focus on treatment and prevention on a population basis and document the impact of that and optimize it so we can do it as effectively as possible. we are also looking at the impact of hiv programs on systems. not only have they achieved its targets, not only hasn't done that with a decline in cost, but at the same time -- not only has it done that with a decline in cost, but we have done that at the same time as we have increased community efforts to improve health.

that is something to be celebrated going forward. combination prevention is something that would have been virtually unimaginable 10 years ago. no one entity can do this alone, but i think working together we can achieve a society in which infant infections are breyer -- are rare, treatment is effective and accountable, helping people live long, healthy, productive lives, and the incidence of hiv is falling rapidly. and that is the world we all need to continue fighting for. thank you for everything you do and all your time to make that reality. thank you very much. [applause] >> thank you.

thank you very much. that was really powerful. let's talk for a few minutes, and then we will open it to our audience. abouttalk a little bit budgets. obviously, that is a great unknown. many of the most difficult decisions are being postponed. division that has been laid out is a very powerful -- the vision that has been laid out is a very powerful vision. we will since certainly sustain and skilled resources. it also depends on the costain, and many of those -- cost gain, and many of those demands have been captured going forward. they have steered us towards redirecting those dollars to the most effective use of them. but we're going to need to

address a very difficult budgetary environment, and perhaps you can see a few words about that? much of what you have laid out is the case, but looking beyond that in a very polarized context, and one in which some really hard decisions have been made for us as a country around our budget, how is your thinking right now? >> i have three points to make about this. first, we are not done decreasing unit costs. we think there is still their ability. we think we can transfer across services by increasing accountability, by using optimization. withnot think we're done reducing unit cost. i am confident that within the budget envelope we're going to see of the next two years, we will be able to reach the target of 6 million, up 4.7

million. the challenge will be as much programmatic as fiscal. the second point -- we need to see more countries get in the game. we need to see more commitment. no one wants to see hard-earned hiv or other assistance dollars used to basically supplant existing government and that -- investments. secretary clinton has been very forceful on that issue. i am confident that in an increasing number of countries, they will increase their domestic commitment. more have and more will. i think we will see more response from a multilateral organizations, ensuring there is effective accountability.

the third point i would make is i am encouraged by the bipartisan, bicameral administration and congress, medical community, and advocates, their commitment to global help and hiv, and that is something that is strong -- global health and hiv, and that is something that is strong. we have to make sure that we make use of all the funds that are entrusted to west. -- entrusted to us. >> thank you. we are hearing about different interests on the hill and elsewhere who are puzzling over the budgetary realities. those are part of this coalition. what we are hearing is, yes, indeed, there needs to be more

skin in the game. there are the multilateral institutions that have been very fragile themselves. but they will return and be stronger. but there is also an increased discussion around how you present to an american public what the endgame looks like -- in game maybe the wrong term, because that implies an exit. but the vision looking now four or five or 10 years that tells a narrative to the american people, different than what was seen a few years ago in the emergency phase, a somewhat open-ended narrative looking forward. can you see a few words about that? but there are several things that are going to affect that. -- >> there are several things that are going to affect that. within a few years, we can really been the cost curve and

reduce expenditures down -- been that the cost curve and reduce expenditures down the road. -- bend because kurt. the option is, you let people die from aids or you scale up treatments. we have decided as a world we're not going to do that. said, we have a major impact -- so, we have a major impact to drive down costs going forward. @ think we need to seek increased commitment from countries, host countries, but other donor countries. i think it is important that we see this as a platform for other critically-important health interventions. reducing health disparities or

establishing a healthy work force. we need still on one hand always keep that accountability. we have those three numbers to focus on. but also use that, use all the precious resources that we have to build systems that will be more resilient and able to address a wide variety of health issues. >> let's talk a little bit more about what lies ahead for the aids conference, its 2012. this is coming after a 22-year gap, which is an interesting proposition. what will we be seeing and what will the environment be like and will this ignite a new interest and enthusiasm, or will this be tapped into some of our other more polarized and politically-charged debates that may attach themselves to this and ignite tensions rather than bring about greater unity?

when you think back historically to the relationship that the united states has had with these conferences, it has often been somewhat contested and combated. in san francisco in 1990's, it was quite a turbulent event. the u.s. government has found itself at different points in a fairly confrontational position. there's a little bit of anxiety. what will happen? i very much enjoyed the fact that you position this in saying we must acknowledge and celebrate the dimension of social mobilization in driving forward our own leadership. perhaps you could say a bit more about how you think about

getting the best outcomes, getting the best set of messages to the american public? trying to get the public to understand what the opportunities are. we have the opportunity at the mmiff to work and through -- we have the opportunity to work for word and through. >> there are aspects of beat be aids epidemic that have been controversial and will remain controversial. i think the u.s. has made great progress. this is the largest global health program taken by any country for any disease. in this administration, we have built on that, and in this administration we have done more nationally. there is still plenty of

unfinished business. we focus on it and say honestly, we're going to do whatever we can achieve to save lives and stop the epidemic. i think what i hope this -- what i hope is we can focus on the areas where we need to do more. i think there is an 80/20 rule here. we agree about 80%, but we spend 80% of our time arguing about the other 20%. one of the other things we can do is look at ways we can use the conference as a catalyst to move forward in those areas where we know we can make progress. i think also a generation of americans have grown up not realizing what a terrible scourged aids is. a generation of men who have sex with men have grown up not

seeing their friends die of the epidemic -- thankfully. but that means we're seeing an increase in sexually risky behavior. across a wide variety of demographics among men who have sex with men. the one thing we need to do is increase awareness of how bad hiv is. it remains an incurable disease. one of the things we can do for our general understanding is to emphasize this is still in the merchants, and for general understanding, you could emphasize that this is a bipartisan commitment. >> i want to invite our audience members to offer comments and questions. we of microphones in the back. what we will do is take three or four at the time and come back

to dr. frieden. please be patient. we will do a couple of cycles. yes? please stand up and identify yourself. >> ray martin from christian connections for international health. thank you for being here. considering what we faced not too many years ago, all of this talk about prevention and the tools that we can bring. i have a comment about combination prevention. the four components that you mentioned in your slide were driven as prevention, voluntary male circumcision, and correct and consistent use of condoms. a different kind of for the global aids coordinator talk about the importance -- at

different times i have heard the global aids coordinator talk about the importance of prevention. by that i think he meant the various aspects of sexual behavior. i am wondering if the difference in perspectives and priorities between the global aids coordinator and the cdc, or why behavior change did not appear on your list of priority components of combination prevention. >> thank you. from the rear. >> donna very from partners in health. this is world tb week. ines the beginning, so i apologize if you commented on this. but it is clear that we need to build up tv programs. -- tb programs. we are incredibly disappointed in what the administration has

asked for this year in bilateral tb funding. we would love to hear more about that. >> ok, sir. >> carlson is with the aids institute. thank you for what your doing. you mentioned that you are focusing the money and programs on the community's most impacted. i want to say thank you for that. my question is the affordable care act. it is in the news lately. how is that going to impact hiv prevention in the united states? >> kershaw we take one more? -- >> shala we take one more? >> thank you. i'm david jameson from [unintelligible] i wanted to thank you very much for a very clear and encouraging

presentation. i want to come back to your comments on the unique cost of care. we have been very involved in driving down the unique cost of care. among those is the drugs. we work very well in the field and successfully in the laboratory area. we found it much harder to drive down unit costs of equipment and diagnostic test in that area. what is being done on harmonization and have -- and standardization that reduces the overall cost? i wonder if you have any thoughts on the overall cost of the commodities themselves in laboratory work. how would one set about driving those costs down? >> these are all wonderful

questions, and all critically important issues. in terms of behavior change, this is and remains and will remain an important part of the epidemic response. the latest central review has been documented in various countries and has a very important role. we would see those programs continuing. similarly, the effort to reduce the number of partners, which has not been as well documented, but if effective, would continue. in terms of tuberculosis, it remains a major killer and a major challenge. and some of you know, i spent many years working on tuberculosis. i have to be careful to keep my comments short on this topic.

we need to be sure with tuberculosis that we never lose sight of the basics. i did review yesterday's a country program where they are treating tb and they ran out of first-line drugs. that should never ever happened. and yet, that is the case in different parts of the world. we have to keep the core programs functioning, and functioning effectively. we also ought to make sure that the patient always remains the vip of the program. and there are programs which have been attempting to do that, more or less affectively. but that is a true -- crucial concept. and the third point i would make is, tb is a disease that takes a long time to treat. it is curable, but it takes a

long time to treat. we do not know for certain yet, but my read of the data in current -- with current technology in many countries we can make huge progress. we can drive down daetz from t.a.r.p. -- deaths from tuberculosis and a new infections from tuberculosis is inevitably. but the number of cases that arrives from those who contracted months or years ago is likely to continue for some time. we need patience and continued assistance to continue long time and effective treatment. that is something we need to do, and in short infection control is something we need to do a much better job at. we know about infections in

health care facilities can account for a significant proportion of new tuberculosis cases, especially with those living with hiv. there are some simple low-cost ways to separate people with profs. getting them out of a hospital, or not hospitalizing them in the first place. we have seen a lot of progress in tuberculosis. other programs have a lot to learn from tuberculosis, in terms of accountability outcomes of individual patients, but we need to keep at it for a long time. the affordable care act will bring health coverage to millions of americans who do not have it today. the results of that may be somewhat reduced pressures on some of the treatment programs, such as brian wade. but that is years from now. until then, we continue to have a challenge to make sure that

people living with the disease have access to care. it will generally give access to a form of care for hiv- positive people, but it will not limit the age of rape programs. that is something we need to continue to do from the public health field. the issue of inefficiencies in laboratory networks and commodities is important. we're looking at it in this country. in the united states we have seen tremendous fiscal pressure on public health departments throughout the u.s.. compared to three years ago, there are about 50,000 fewer people working in health departments in the u.s. than there were just three years ago. one of the things we're doing at the cdc is a laboratory efficiency to try to identify shared resources to drive costs

down. we have seen it from a variety of transport issues that it is harder to drive costs down. we need to work in that area. we also need to look at new technologies. for example, a cdc scientists have developed in another field a rapid blood test to my point of care test for plague. it is highly accurate. and new technologies have the potential to drive costs down -- to drive costs up because they're complicated, or drive costs down because they are simple and accurate. >> i will follow-up on the tuberculosis question. while acknowledging there is a lot more that can be done better for existing programs

and treatments, what is your perspective on new tools, new diagnostics, new drugs to invest in tuberculosis for the long haul? >> [unintelligible] >> one other thing added to that. will we see focus on hiv infection at the aids conference, considering there is a high infection rate between tuberculosis and hiv/aids? >> my question was about the domestic response. you said of the four priorities, 75% of the dollars will be prioritized, the fourth one will be around viral load. i do not know if that is

community or medical. do those programs toward the medical community or the medical provider? if you could tell me about what that looks like. >> thank you for your presentation. it is really wonderful to be seeing a attention to cost and cost effectiveness. we have not always have those numbers, and being able to show these improvements and increments. but with an eye to aid its 2012 coming in, and realizing we actually talked to ourselves, this committed group of people who are well versed in public health and development and hiv/aids, and realizing this great opportunity we have a word the american public and people in congress who has -- who have not been following either hiv/aids or the elements in public health are going to be

potentially exposed to what we hope could be reaffirming and exciting and new ideas. sometimes when we limit the discussions to cost and cost effectiveness, we forget to make the next jump to value, and sometimes surprising value. and the difference in difficult budgetary times, what is the value in funding or increased funding. and that can be different from person actually -- but from the perception of the incremental cost of doing more and the cost of transmission verses the value of eliminating hiv/aids. those are very different argument and very different justifications for budgetary improvements even. i hired are, maybe. -- a higher bar, maybe.

when i came back from overseas and from there was academic and i found a range of people. there were those who thought you could do nothing about hiv/aids and every dollar you spend was utile current -- was futile. similarly, i think we get caught right now with of money going to foreign assistance for an international response to more money being spent here at home. a lot of these creative solutions and value-added leaves can come from the space in between those extremes. it seems to me when i came to work in d.c., a lot of the improvements where were able to make with scaling up provider testing and our efforts here

within the city, they came from what we're doing abroad. cdc is uniquely paste to tell some of these value added stories because of these -- your role not just with pepfar, but with the state health department. what are some of the value out of stories that people are unaware of and are the difference between driving incidences down a little bit. >> i am from nih. thank you for the presentation i worked -- for the presentation. i work in both africa and asia. when we work with hiv/aids, and you mentioned before the walkers, the one who provides the services.

we're looking for the increasing quantity, quality, and retention of health workers in their own countries. we have been working in different areas. you mention that cdc cannot do it alone. as a u.s. agency, how is your plan to work together with other agencies so we can provide prevention and treatment and care services to the people and expanded in a sustainable way? >> first on tuberculosis, we have seen significant progress on new diagnostics in terms of development in the laboratory -- laboratory development in the laboratory. we now have to define the role of those new diagnostics. for example, we have rapid tests for tb and present this and resistance.

that could be done in a high- volume to rapidly get people out of the hospital to reduce spread. i do not know if that is the best place to do it, but it is something to figure out. one technology that i'm quite excited about is led fluorescent at my prosperity -- led fluorescence microscopy. one area of concern was where it was available in small supply. many companies -- countries have very little of electrical supply and maybe one-third have poured quality. we tried everything and solar does not quite work. batteries may not last long.

but led is a great technology. you do not need a big battery to last a long time. and fluorescent increases your throughput. i do not know if this is an area that will be highly effective or scalable, but let's figure it out. if we have new technologies and we need to use them. we have some inklings of accommodations in drug treatment that may get to arguses down from six months to four months. -- get tuberculosis down from six months to four months. i predicted a significant ion in the length of treatment. i do not know if it will be another decade before we do, but it grows slowly and it is tough to treat. but it is important that we produce a wide regiment selection.

a vaccine would undoubtedly be a nobel prize. we have made progress in some of the science there. the very long way away from what we need to make it happen. but it is a very important thing to happen. you will see a lot more on this in the international aids conference. i will mention in passing critical meningitis. is it terrible virus. it is a fungal disease and often fatal. and it is preventable hot with in expensive medications -- preventable with inexpensive medications. cdc scientists have developed a rapid test for it. and just as we give medicine to tocpc, we may be able -- to prevent cpc, we may be able to

develop the same for this meningitis. and then figuring out what the role for those treatments are, how best and most efficiently they can be used. the question about how we will prioritize prevention funds in this country, 75% aren't core prevention's and scaling them up to population impact. i think we are still figuring out how to use viral load. we would like to see a convergence of the use of viral load to hold the entire community accountable for how we are doing at stopping the hiv. some of the virus that is not

surprised is experiencing a ravaging of their immune system and other parts of their body by the hiv virus. the same time, they are increasing the risk to partners. we hope to see a convergence of accountability. already, about half of the states get viral load. we are still figuring out what the best way is to monitor it. and the volume of viral load testing is high. in ensuring that we are able to get the information through laboratory systems to duplicate it, not simple. but this is a critical area and to look at, ensuring that we have complete confidentiality for individuals, and of course, by saying we want to get viral load suppression and a community level, we say at note

-- at all times that no one is suggesting mandatory treatment for hiv. but we are suggesting the treatment facilities' use that information to hold themselves accountable for what they are reaching out effectively to ensure that people aren't being given every up -- are being given every opportunity to come in for treatment. in terms of the bayou proposition i would make a few comments. -- the value proposition i would make a few comments. first, it is important we do not of report -- overpromise. hiv will be with us and it will be until we have a vaccine. but it can be in a much less burdensome way. if we can drive down incidences'. we can prevent maternal transmission to invent. we can make sure it is not the crisis that it is today. -- we can prevent maternal- infant transmission. and we can make sure it is not a crisis that it is today.

ultimately, one of the wonderful thinkers in public health is jeffrey rose, whose book "preventive medicine" says basically, the best case for prevention is that it is better to be healthy and sick and it is better to be alive than dead. that is the real proposition for public health. but there is a lot of value not only to the hiv care that we are doing, but also the strengthening of the systems, whether that is for accountability or clinical care, or systems for linkage or advocacy and critical providers. there is no one best way to communicate this to audiences.

there is no one does message. but to different audiences there are effective messages, and i think we need to continue to show the reality. because that is the best case for our preventive efforts. in terms of health care workers, we have done an enormous amount in training and development of health care workers in nursing and medical schools and residencies in public health. we need to continue to build on that. we need to support health care workers in developing countries, and in this country, where we are seeing shortages in the areas where there is the greatest need. that is another strong case for team based care, giving people in communities who are trained and empowered and able to provide lifesaving interventions. they will be critically important going forward. >> where going to close with leadership.

we have talked about having the value proposition put forward, consistent messaging, and making it clear in science and evidence based ways. clearly, leadership remains very fundamental. we have seen this with the impact that president bush has had, president obama, secretary clinton, yourself, mayor bloomberg. the polio case in india in this last phase was very much at the level of indian leadership. maybe you can say a few words about what we should expect going into july, and what we should expect, we should be calling for with respect to the role that the leadership will play. sometimes in these conferences in the past there has been dramatic expressions of leadership.

other times, there has been less than adequate or optimal. >> week have seen -- we >> we have seen u.s. leadership on this issue globally starting in the past decade and in the current administration, and we have seen tremendous action on behalf of president obama and secretary clinton calling for ambitious targets that are achievable and a real world, real lives. we see leadership as the single predictor as to whether a program will succeed or fail. to be blunt, look at the south africa. what a dramatic turnaround from denial to acceptance and leadership in addressing the hiv epidemic. i think we need to hold

countries throughout the world accountable. the we are continuing and achieving the kind of leadership. in the u.s., we need to make sure there is not only the leadership that we have at the federal level, but also at the state and local level where we are seeing states not treat people with hiv. we are seeing localities step back from commitments they have had before. leadership at every level is the strongest predictor of success or failure of hiv and other public health programs. it >> @ thank you. -- >> thank you. please join me in thanking him. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]

>> the supreme court began three days of oral arguments on the 2010 health care law. today, i'd look at whether it has the authority to hear the case. that is next on c-span. after that, reactions to the arguments. tomorrow, ms. of the fence and the nation's nuclear arsenal. live coverage from the armed services committee started 9:30 a.m. eastern on c-span3. >> in march of 1979, c-span began televising the u.s. house of representatives to households nationwide. and today, our content of politics and public affairs, non fiction books and american history is available on tv, radio, and online. >> they are the ones that change

this country inevitably with what we call the march toward progress. the march toward knocking on the walls of discrimination that prevented us from passing the 1964 civil-rights act and accommodations. as a people who were not white could going to restaurants and hotels. public accommodation, the '65 act for voting rights. the 68th act of public accommodations. the act saying women will be treated equally. all of that is the march to progress. and my friend, the one organization, the one institution that protects it is the supreme court of the united states. >> c-span, created by america's cable companies and as a public service. >> the next, the supreme court hears the first oral argument on the 2010 health care law. the court examines the 1860's

seven anti injunction act, a law that prohibits courts from striking down tax laws before they take effect. challengers to the law believe the act should not stop the supreme court from ruling on the merits of the law. this is 90 minutes. chief justice roberts: we will hear argument this morning in case number 11-398, department of health and human services v. florida. mr. long. oral argument of robert a. long on behalf of the court- appointed amicus curiae mr. long: mr. chief justice, and may it please the court: the anti-injunction act imposes a pay first, litigate later rule that is central to federal tax assessment and collection. the act applies to essentially every tax penalty in the internal revenue code. there is no reason to think that congress made a special exception for the penalty imposed by section 5000a. on the contrary, there are three reasons to conclude that the anti-injunction act applies here.

first, congress directed that the section 5000a penalty shall be assessed and collected in the same manner as taxes. second, congress provided that penalties are included in taxes for assessment purposes. and third, the section 5000a penalty bears the key indicia of a tax. congress directed that the section 5000a penalty shall be assessed and collected in the same manner as taxes. that derivative triggers the anti- injunction act which provides that "no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person." justice scalia: well, that depends, as -as the government points out on whether that derivative is a directive to to the secretary of the treasury as to how he goes about getting

this penalty, or rather a directive to him and to the courts. all all of the other directives there seem to me to be addressed to the secretary. why why should this one be directed to the courts? when you say in the same manner, he goes about doing it in the same manner, but the courts simply accept that that manner of proceeding but nonetheless adjudicate the cases. mr. long: well, i think i have a three-part answer to that, justice scalia. first, the text does not say that the secretary shall assess and collect taxes in the same manner; it just says that it shall be assessed in the same manner as a tax, without addressing any party particularly. justice scalia: well, he's assessing and collecting it in the same manner as a tax. mr. long: well, the assessment the other two parts of the answer are, as a practical

matter, i don't think there is any dispute in this case that if the anti-injunction act does not apply, this penalty, the section 5000a penalty, will as a practical matter be assessed and collected in a very different manner from other taxes and other tax penalties. there there are three main differences. first, when the anti-injunction act applies, you have to pay the tax or the penalty first and then litigate later to get it back with interest. second, you have to exhaust administrative remedies; even after you pay the tax you can't immediately go to court. you have to go to the secretary and give the secretary at least 6 months to see if the matter can be resolved administratively. and third, even in the very carefully defined situations in which congress has permitted a challenge to a tax or a penalty before it's paid, the secretary

has to make the first move. the taxpayer is never allowed to rush into court before the tax - before the secretary sends a caught notice of deficiency to start the process. now if if the anti-injunction act does not apply here, none of those rules apply. that's not just for this case; it will be for every challenge to a section 5000a penalty going forward. the the taxpayer will be able to go to court at any time without exhausting administrative remedies; there will be none of the limitations that apply in terms of you have to wait for the secretary to make the justice kennedy: why why will the administrative remedies rule not be applicable - exhaustion rule not be applicable? mr. long: well, because if the anti-injunction act doesn't apply there is there is no prohibition on courts restraining the assessment or collection of this penalty, and you can simply - justice kennedy: well, but courts apply the exhaustion rule. i mean, i know you've studied this. i'm just not

following it. why couldn't the court say well, you haven't exhausted your remedies, no injunction? mr. long: well, in you could do that, i think as a matter of of common law or judicially imposed doctrine, but in the code itself which is all i mean, the anti-injunction act is an absolutely central statute to litigation - justice kennedy: yes, yes. mr. long: about taxes. and the code says, first it says you must pay the tax first and then litigate. so that's the baseline. and then in addition it says you must i mean, it's not common law; it's in the code you must apply for a refund, you must wait at least 6 months. that's many of these provisions are extremely specific, with very specific time limits - chief justice roberts: they would apply even if the rule is not jurisdictional. the only difference would be that the court could enforce it or not enforce it in particular cases, which brings me to the davis case, which i think is your biggest hurdle. it's a case

quite similar to this in which the constitutionality of the social security act was at issue, and the government waived its right to insist upon the application of this act. of course, if it's jurisdictional, you can't waive it. so are you asking us to overrule the davis case? mr. long: well, helvering v. davis was decided during a period when this court interpreted the anti-injunction act as simply codifying the pre-statutory equitable principles that usually but not always prohibited a court from enjoining the assessment or collection of taxes. so that understanding, which is what was the basis for the helvering v. davis decision, was rejected by the court in williams packing and a series of subsequent cases bob jones. and so i would say effectively, the davis case has been overruled by subsequent decisions of this

court. justice ginsburg: mr. long, why don't we simply follow the statutory language? i know that you've argued that the davis case has been overtaken by later cases, but the language of the anti-injunction act is "no suit shall be maintained." it's remarkably similar to the language in that was at issue in reed elsevier: "no civil action for infringement shall be instituted." and that formulation, "no suit may be maintained," contrasts with of the tax injunction act, that says the district court shall not enjoin. that tax injunction act is the same pattern as 2283, which says "courts of the united states may not stay a proceeding in state court." so both of those formulas, the tia and the no injunction

against proceedings in state court, are directed to "court." the anti-injunction act, like the statute at issue in reed elsevier, says "no suit shall be maintained," and it has been argued that that is suitor- directed in contrast to court- directed. mr. long: right. well, i mean, this court has said several times that the tax injunction act was based on the anti- injunction act. you are quite right, the language is different; but we submit that the anti-injunction act itself, by saying that no suit shall be maintained, is is addressed to courts as well as litigants. i mean, after all, a case cannot go from beginning to end without the active cooperation of the court. justice ginsburg: but how is that different from no civil action for infringement shall be instituted "maintained and instituted"? anything turn on that?

mr. long: well, it's i mean perhaps a party could initiate an action without the act of cooperation of the court, but to maintain it from beginning to end again requires the court's cooperation. and and even if i mean, if the court were inclined to say as an initial matter if this statute were coming before us for the first time today, given all of your recent decisions on jurisdiction, that you might be inclined to say this is not a jurisdictional statute. a lot of water has gone over the dam here. the court has said multiple times that this is a jurisdictional statute. congress has not disturbed those decisions. to the contrary - justice sotomayor: counsel - justice alito: well, congress said that many times, but is there any case in which the result would have been different if the anti-injunction act were not viewed as jurisdictional but instead were viewed as a mandatory claims processing rule? mr. long: there there are certainly a number of cases

where the court dismissed saying it is jurisdictional. as i read the cases, i don't think any of them would necessarily have come out differently, because i don't think we had a case where the argument was, well, you know, the government has waived this, so, you know, even if it's not jurisdictional - justice alito: well, the clearest the clearest way of distinguishing between the jurisdictional provision and a mandatory claims processing rule is whether it can be waived and whether the court feels that it has an obligation to raise the issue sua sponte. now, if there are a lot of cases that call it jurisdictional, but none of them would have come out differently if the anti-injunction act were simply a mandatory claims processing rule, you have that on one side. and on the other side, you have davis, where the court accepted a waiver by the solicitor general; the sunshine anthracite coal case, where there also was a waiver; and, there's the williams packing case, which is somewhat hard to understand as viewing the anti-

injunction act as a jurisdictional provision. the court said that there could be a suit if there is no way the government could win, and the plaintiff would suffer irreparable harm. now, doesn't that sound like an equitable exception to the anti- injunction act? mr. long: no. i think the i think the best interpretation of the court's cases is that it was interpreting a jurisdictional statute. and, indeed, in williams packing, the court said it was a jurisdictional statute. but, again, even if you have doubt about simply the cases, there is more than that because congress has has not only not disturbed this court's decision stating that the statute is jurisdictional, they've passed numerous amendments to this anti-injunction act. chief justice roberts: well, it seems -you can't separate those two points. the idea that congress has acquiesced in what we have said only helps you if what we have said is fairly consistent. and you, yourself, point out in your brief that

we've kind of gone back and forth on whether this is a jurisdictional provision or not. so, even if congress acquiesced in it, i'm not sure what they acquiesced in. mr. long: well, what you have said, mr. chief justice, has been absolutely consistent for 50 years, since the williams packing case. the period of inconsistency was after the first 50 years, since the statute was enacted in 1867. and there was a period, as i said, when the court was allowing extraordinary circumstances exceptions and equitable exceptions, but then, very quickly, it cut back on that. and since -and since williams packing, you have been utterly consistent - justice kagan: well, even since williams packing, there was south carolina v. regan. and that case can also be understood as a kind of equitable exception to the rule, which would be inconsistent with thinking that the rule is jurisdictional. mr. long: well, again, i mean, i think the best understanding of south carolina v. regan is not that its an equitable exception, but it's the court interpreting a jurisdictional statute as it would interpret

any statute in light of its purpose, and deciding in that very special case, it's a very narrow exception, where the - justice sotomayor: mr. long, in bowles, the court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not as a claim processing rule, but as a pure jurisdiction rule, the power of the court to hear a case. from all the questions here, i count at least four cases in the court's history where the court has accepted a waiver by the solicitor general and reached a tax issue. i have at least three cases, one of them just mentioned by justice kagan, where exceptions to that rule were read in. given that history, regardless of how we define jurisdictional statutes versus claim

processing statutes in recent times, isn't the fairer statement that congress has accepted that in the extraordinary case we will hear the case? mr. long: no. no, justice sotomayor, because in many of these amendments which have come in the '70s and the '90s and the 2000's, congress has actually framed the limited exceptions to the anti- injunction act in jurisdictional terms. and it's written many of the express exceptions by saying notwithstanding section 7421 - justice sotomayor: but doesn't that just prove that it knows that the court will impose a claim processing rule in many circumstances, and so, in those in which it specifically doesn't want the court to, it has to be clearer? mr. long: well, but congress says, notwithstanding 7421, the court "shall have jurisdiction to restrain the assessment and collection of taxes in very limited" -

justice sotomayor: could you go back to the question that justice alito asked. assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? what kinds of cases do you imagine that courts will reach? mr. long: right. well, first of all, i think you would be saying that for the refund statute, as well as for the anti-injunction act which has very similar wording, so if the anti-injunction act is not jurisdictional, i think that's also going to apply to the refund statute, the statute that says you have to first ask for a refund and then file, you know, within certain time so it would be it would be both of those statutes. and, you know, we are dealing with taxes here, if people - justice sotomayor: that wasn't my question. mr. long: i'm sorry. justice sotomayor: my question

was if we deem this a mandatory claim processing rule - mr. long: right. justice sotomayor: what cases do you imagine courts will reach on what grounds? assuming the government does its job and comes in and raises the aia as an immediate defense - mr. long: well, that's - justice sotomayor: where can a court then reach the question, despite - mr. long: that would certainly be the first class of cases, it occurs to me, where, if the government does not raise it in a timely way, it could be waived. i would think plaintiffs would see if there was some clever way they could get a suit going that wouldn't immediately be apparent that - justice sotomayor: assumes the lack of competency of the government, which i don't, but what other types of cases? justice scalia: mr. long, i don't think you are going to come up with any, but i think your response is you could say that about any jurisdictional rule. if it's not jurisdictional, what's going to happen is you are going to have an intelligent federal court deciding whether you are going

to make an exception. and there will be no parade of horribles because all federal courts are intelligent. [laughter] so it seems to me it's a question you can't answer. it's a question which asks "why should there be any jurisdictional rules?" and you think there should be. mr. long: well, and, justice scalia, i mean, honestly, i can't predict what would happen, but i would say that not all people who litigate about federal taxes are necessarily rational. and i think there would be a great - justice breyer: i just don't want you to lose the second half of your argument. and we have spent all the time so far on jurisdiction. and i accept, pretty much, i'm probably leaning in your favor on jurisdiction, but where i see the problem is in the second part, because the second part says "restraining the assessment or collection of any tax." now, here, congress has nowhere used the word "tax." what it says is penalty. moreover, this

is not in the internal revenue code "but for purposes of collection." and so why is this a tax? and i know you point to certain sentences that talk about taxes within the code mr. long: right. justice breyer: and this is not attached to a tax. it is attached to a health care requirement. mr. long: right. justice breyer: so why does it fall within that word? mr. long: well, i mean, the first point is our initial submission is you don't have to determine that this is a tax in order to find that the anti- injunction act applies, because congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. so that's one justice breyer: but that doesn't mean the aia applies. i mean and then they provide some exceptions, but it doesn't mean the aia applies. it says "in the same manner as." it is then attached to

chapter 68, when that it that references that as "being the manner of." well, that it's being applied or if it's being collected in the same manner as a tax doesn't automatically make it a tax, particularly since the reasons for the aia are to prevent interference with revenue sources. and here, an advance attack on this does not interfere with the collection of revenues. readn, that's you have the arguments, as have i. but i would like to know what you say succinctly in response to those arguments. mr. long: so specifically on the argument that it it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax. the anti-injunction act uses the term "tax"; it doesn't define it. somewhat to my

surprise, "tax" is not defined anywhere in the internal revenue code. in about the time that congress passed the anti- injunction act, tax had a very broad definition. it's broad enough to include this exaction, which is codified in the internal revenue code. it's part of the taxpayers' annual income tax return. the amount of the liability and whether you owe the liability is based in part on your income. it's assessed and collected by the irs. justice scalia: there there is at least some doubt about it, mr. long, for the reasons that justice breyer said, and i i thought that we we had a principle that ousters of jurisdiction are are narrowly construed, that, unless it's clear, courts are not deprived of jurisdiction, and i find it hard to think that this is clear. whatever else it is, it's easy to think that it's

not clear. mr. long: well, i mean, the anti-injunction act applies not only to every tax in the code, but, as far as i can tell, to every tax penalty in the code. justice ginsburg: mr. long, you you said before and i think you were quite right that the tax injunction act is modeled on the anti-injunction act, and, under the tax injunction act, what can't be enjoined is an assessment for the purpose of raising revenue. the tax injunction act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. and this is not a revenue-raising measure, because, if it's successful, they won't nobody will pay the penalty and there will be no revenue to raise. mr. long: well, in in bob jones the court said that they

had gotten out of the business of trying to determine whether an exaction is primarily revenue raising or primarily regulatory. and this one certainly raises is expected to raise very substantial amounts of revenues, at least $4 billion a year by the - justice sotomayor: but bob jones involved a statute where it denominated the exaction as a tax. mr. long: that's - justice sotomayor: here we have one where the congress is not denominating it as a tax; it's denominating it as a penalty. mr. long: that's that's absolutely right, and that's obviously why, if it were called a tax, there would be absolutely no question that the anti-injunction act applies. justice sotomayor: absolutely. but even the section of the code that you referred to previously, the one following 7421, the aia, it does very clearly make a difference 7422 make a difference between tax

and penalties. it's very explicit. mr. long: yes, that's it does, that is correct, and there are many other places in the code where - justice breyer: the best collection i've found in your favor, i think, is in mortimer caplin's brief on page 16, 17. he has a whole list. all right. so i got my law clerk to look all those up. and it seems to me that they all fall into the categories of either, one, these are penalties that were penalties assessed for not paying taxes, or, two, they involve matters that were called by the court taxes, or, three, in some instances they were deemed by the code to be taxes. now what we have here is something that's in a different statute that doesn't use the word "tax" once except for a collection device, and, in fact, in addition, the underlying aia reason, which is to say to the solicitor general, we don't care what you think, we, in congress, don't want you in court where the revenue of a

state tax injunction act or the revenue of the federal government is at stake, and, therefore, you can't waive it. now i got that. here it's not at stake and here are all the differences i just mentioned. so i ask that because i want to hear your response. mr. long: well, i mean, there are penalties in the internal revenue code that you really couldn't say are related in any in any close way to some other tax provision. there is a penalty it's discussed in the briefs for selling diesel fuel that doesn't comply with epa's regulations, you know. so there are all kinds of penalties in the code, and i think it's -it could be - justice kagan: mr. long, aren't there places in this act fees and penalties that were specifically put under the anti-injunction act? there is one on health care plans, there is one on pharmaceutical

manufacturers, where congress specifically said the anti- injunction act is triggered for those. it does not say that here. wouldn't that suggest that congress meant for a different result to obtain? mr. long: well, i mean, congress didn't use the language the anti-injunction act shall apply - justice kagan: no, but it it in section 9008 and in section 9010 - mr. long: right. justice kagan: it specifically referred to the part of the code where the anti-injunction act is. mr. long: right, all of subtitle f, which picks up lots of administration and procedure provisions, but those those are fees, and they are not congress did not provide, you know, in the sections themselves that they should be paid as part of a tax return. so they were free-standing fees, and by using that subtitle f language, congress plugged in a whole set of rules for how to collect and administer the fees, and it went not just to assessment and collection and the irs has recognized this but to examination, privacy, a whole

series of additional things. so i think it would be a mistake to look at that language and say, "oh, here's congress saying they want the anti- injunction act to apply." they are actually doing more than that. and, yes, i grant you, you could look at section 5000a, the individual coverage requirement, and say, well, they could have been clearer about saying the anti-injunction act applied, and that's certainly true, but, again, they were trying to accomplish a lot. maybe - justice kennedy: it's easier to talk about this case if we just forget the words "for the purpose of restraining assessment and collection." in a sense, that brings the jurisdictional question and justice breyer's question together. it seems to me maybe you could just comment on that language. is that sort of language usually contained in a jurisdictional provision? i mean, you often don't know the

purpose of a suit until after the thing is underway. i can see it with malicious prosecution and some civil rights cases. does it strike you as somewhat unusual to have this provision in a jurisdictional case? mr. long: it does strike me, honestly, as a bit unusual, but this is an old statute. i mean, this the core language is essentially unchanged since 1867, and, you know, i think that's part of the explanation for it. and, again, it's, you know, become the center of a series of provisions that very carefully control the circumstances in which litigation about federal taxes can take place. justice ginsburg: mr. long, there's another argument that has been made that i would like you to address, and that is all this talk about tax penalties is all beside the point because this suit is not challenging the penalty. this is a suit that is challenging the must-buy

provision, and the argument is made that, if, indeed, "must- buy" is constitutional, than these complainants will not resist the penalty. a what they're seeking is determination that that "must- buy" requirement, stated separately from penalty, that "must-buy" is unconstitutional, and, if that's so, that's the end of the case; if it's not so, they are not resisting the penalty. mr. long: well, i think that argument doesn't work for two reasons. i mean, first, if you look at the plaintiff's own complaint, they clearly challenge both the minimum coverage requirement and the penalty. at page 122 of the joint appendix they challenge the requirement that the individuals obtain health care coverage or pay a penalty. justice alito: why is that?

justice ginsburg: if that's if that's the problem, it's easier to amend the complaint. they can just take that out of the complaint. so it can't turn on that. mr. long: well, yes, i mean, it's or another complaint would be filed, but, still, i think that's a serious problem. but even if they had filed a different complaint, i don't think you in this case i don't think you can separate the minimum coverage requirement from the penalty because the penalty is the sole means of enforcing the minimum coverage requirement. so so, first, i mean, i think these plaintiffs would not be satisfied if the court were to render a judgment saying the minimum coverage requirement is invalidated; the penalty, however, remains standing. anybody who doesn't have insurance has to pay the penalty. then they would have to pay a penalty equal to the cost of insurance and they wouldn't even have insurance. so i don't think that would be - justice alito: well, they say they want to obey the law, and they say that your argument puts them in the position of having to disobey the law in order to obtain review of their claim. and what is your answer

to that? mr. long: well, i mean, first of all, i can't find that in the record, in their declarations. don't see a statement that they will, you know, never incur a penalty under any circumstances. but but even if that were so, what this court has said in americans united is the anti-injunction act bars any suit, not just to enjoin the collection of your own taxes, but to enjoin the collection of anyone's taxes. and so even if it were really true that these plaintiffs were not interested in the penalty and would never pay the penalty, if they were to succeed in this case in striking down the minimum coverage requirement the inevitable result would be that the penalty would fall as well, because the government couldn't collect the penalty for failing to follow an unconstitutional requirement, and so it would still be barred because it would be a suit that would prevent the collection of

some of the - justice alito: well, let me take us back to justice kennedy's question about the "for the purpose of" language. i take it you interpret the statute to mean the following: "for the purpose of" means having the effect of. is that correct? mr. long: well - well, i mean, this court in the bob jones case, where a similar kind of argument was being made by the plaintiff in that case, said: look, you know, where the where it's inevitable that this is what the suit is about, they're sort of two sides of the same coin, that clearly is a primary purpose of the suit. and it's and you can't by clever pleading get away from that. that's just the nature of the situation. justice kagan: but, mr. long, aren't you trying to rewrite the statute in a way? the statute has two sections. one is the you have to have insurance section and the other is the sanction. the statute has two different sets of exceptions corresponding to those two different sections. you are

trying to suggest that the statute says: well, it's your choice; either buy insurance or pay a or pay a fee. but that's not the way the statute reads. and congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command. mr. long: well, i would not argue that this statute is a perfect model of clarity, but i do think the most reasonable way to read the entire statute is that it does impose a single obligation to pay a penalty if you are an applicable individual and you are not subject to an exemption. and the reason i say that, if you look at the exemptions from the penalty, the very first one is you are exempt from the penalty because you can't afford to purchase insurance. and it just doesn't seem reasonable to me to interpret the statute as

congress having said, well, you know, this person is exempt from paying a penalty because we find they can't afford to buy insurance, however they still have a legal obligation to buy insurance. that just doesn't seem reasonable. so i so i do think, although it's i certainly wouldn't argue it's clear that that's the best way to understand the statute as a whole. but again, i would say, you know, that's not essential to the question we're discussing now of whether the anti- injunction act applies. again, you know, i think - justice sotomayor: could you tell me why you think the solicitor general's reading creates a problem? mr. long: well, in going back to so if the result were to say simply, this is not oh, i'm sorry. the solicitor general's reading. so now it's not - justice sotomayor: that it is a jurisdictional bar, but there's an exemption for those items

that congress has designated solely as penalties that are not like taxes. mr. long: right. well, i mean, i think the solicitor general's reading would probably create the fewest problems, as i understand it. i mean, my my main objection to the solicitor general's reading is i don't think it makes a whole lot of sense. i mean, basically the solicitor general says every penalty in the internal revenue code, every other penalty in the affordable care act is justice sotomayor: but that's not that's carrying it too far, because he says if a penalty is designated as a tax by congress then it's subject to the aia, and that's most of the code, the tax code. and he says for those portions of the affordable care act that designate things as taxes, the aia applies. so it's only and i haven't found another statute. i'm going to ask him if there's another one. it's only for those statutes in which congress has

designated something solely as a penalty. mr. long: right. justice sotomayor: and not indicated that it is a tax. mr. long: right. justice sotomayor: they don't fall within the aia. mr. long: i think my my take on it is if you adopted the solicitor general's approach there are probably three penalties for alcohol and tobacco-related offenses at 5114(c), 5684, and 5761 that i think would be very difficult to distinguish from this one, and possibly the 527(j) penalty for failure to disclose political contributions. if there are no further questions, i would like to reserve my time. chief justice roberts: thank you, mr. long. general verrilli. oral argument of donald b. verrilli, jr., on behalf of the petitioners general verrilli: mr. chief justice and may it please the court: this case presents issues of great moment, and the anti- injunction act does not bar the court's consideration of those issues. that is so even though the anti-injunction act is a

jurisdictional limit that serves what this court described in clintwood elkhorn as an exceedingly strong interest in protecting the financial stability of the federal government, and even though the minimum coverage provision of the affordable care act is an exercise of congress's taxing power as well as its commerce power. congress has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put section 5000a into the internal revenue code. but for purposes of the anti-injunction act, the precise language congress used is determinative. and there is no language in the anti- injunction act excuse me, no language in section 5000a of the affordable care act or in the internal revenue code generally that provides a textual instruction that - justice alito: general verrilli, today you are arguing that the penalty is not a tax. tomorrow you are going to be back and you will be arguing that the penalty is a tax.

has the court ever held that something that is a tax for purposes of the taxing power under the constitution is not a tax under the anti-injunction act? general verrilli: no, justice alito, but the court has held in a license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. and that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. tomorrow the question is whether congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis. justice sotomayor: well, general, you also have the bailey child labor tax cases, because there the court said that the tax, which was a prohibitory tax alone, was a tax subject to the aia, and then it said it was beyond the

court's taxing power in a separate case, correct? general verrilli: yes. i do think, justice sotomayor, that, with respect to one of the arguments that my friend from the nfib has made in of the brief, that bailey v. george is a significant problem because i think their argument on the constitutionality under the taxing power is essentially that the affordable care act provision is the same thing as the provision that was held unconstitutional in bailey v. drexel furniture company. justice sotomayor: that's a different issue. general verrilli: but on the same day -right, but on the same day as bailey v. drexel furniture, the court issued bailey v. george, which held that the anti-injunction act did bar a challenge to that provision, even though the court had concluded that it was invalid under the tax power. so and i think the reason for that has been is clear now after williams packing and bob

jones, in that in order to find that the anti-injunction act doesn't apply to something that otherwise would be a tax that triggers it, you have to conclude essentially that there is no substantial argument that can be made in defense of it as a tax. we don't have that here, so i don't think you can get around the anti-injunction act if the court were to read it, as the amicus suggest it should be read, on that theory. but. justice ginsburg: mr. verrilli, a basic question about your argument. if you are right about the second part, that is for purposes of the statute, the anti-injunction statute, this penalty does not constitute a tax, then does the court need to decide whether the anti- injunction act in other cases where it does involve a tax is jurisdictional? general verrilli: no. i i apologize if i'm creating confusion about that, justice ginsburg. we think by far the

better route here is to understand the statute as we have proposed that it be construed as not applying here. from the perspective of the united states and if i could, i'd like to take a minute on this the idea that the anti- injunction act would be construed as not being a jurisdictional provision is very troubling, and we don't think it's correct. and i i would, if i could follow up on a question, justice ginsburg, that you asked mr. long in terms of the language of the anti-injunction act 7421(a), which can be found at page 16a of the appendix to our brief. i i'd ask the court to compare that to the language of the very next provision in the code, which is on the next page of our statutory appendix, 17a, which is the refund statute which we've talked about a little bit so far this morning, 7422(a). the refund statute this court held in dolan was jurisdictional, and the court in both dolan and brockamp held that the statute of limitations that applies to the refund statute cases is jurisdictional.

the language in 7422(a) is virtually identical to the language in 7421(a) - justice kennedy: that that is correct, although in the refund context, you have the sovereign immunity problem, in which we presume that has not been waived. general verrilli: right. but i - 7421(a) were the same - justice kennedy: the language is quite parallel. general verrilli: and originally, they were the same statutory provision. they were only separated out later. so i do think that's the strongest textual indication, justice ginsburg, that that 7421(a) is jurisdictional. justice ginsburg: but then, general, what i asked you is, if you're right that this penalty is not covered by section 7421, if you're right about that, why should we deal with the jurisdictional question at all? because this statute,

correct, the way you reading - read it, doesn't involve a tax that's subject to the anti- injunction act. general verrilli: yes, that is exactly our position. and the reason we don't - justice ginsburg: so so you you agree that we would not if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction. general verrilli: there would be no reason to decide the jurisdictional issue. justice kennedy: don't you want to know the answer? [laughter] general verrilli: justice kennedy, i think we all want to know the answer to a lot of things in this case. but but i do i do think that the prudent course here is to construe the statute in the manner that we read it. justice kennedy: but but you indicated there was a discussion earlier about why does the government really care, they have competent attorneys, et cetera. but and you began your argument by saying it would be very troubling to say that it's not jurisdictional. i'd like you to comment on that it's not for us to tell a party what's in its best interests. it would seem to me that there might be some instances in which the government would want to litigate the validity of a tax right away and would want to waive. but you say it's

that's not true; that it's very troubling. general verrilli: i think there are two problems. one is the problem that justice scalia identified, that if it's not jurisdictional, then courts have authority to craft equitable exceptions. and it may seem from where we stand now that that authority is or could be very, very tightly cabined, but if if this court were to conclude that it isn't jurisdictional, that does empower courts to find other circumstances in which they might find it equitable to allow cases to go forward in the absence of of -despite the existence of the anti- injunction act. and second, although i certainly am not going to stand up here and disparage the attorneys from the united states in the slightest, the reality is that if this isn't jurisdictional, then it's the argument it's open to the argument that it's subject to forfeiture by a simple omission in failing to raise it in an answer. and that and that's a troubling prospect. justice sotomayor: how, if you're troubled by - justice ginsburg: can i ask - chief justice roberts: justice

ginsburg. justice ginsburg: how how likely is it i mean, the government is going to be defending these suits, how likely is it that the government will overlook the anti-injunction act? it seems to me that this is arming the government by saying it's waivable at the government's option. general verrilli: that's that is not our assessment of the institutional interests of the united states, justice ginsburg. and we do think that the -the right way to go in this case is to read the statute as not applying to the minimum coverage provision of the affordable care act. chief justice roberts: it was it was the calculation of the interests of the united states that your predecessor made in the davis case. there, the the solicitor general exercised the authority that we sanctioned to waive the the anti-injunction act. and of course, that couldn't be done if it were jurisdictional. general verrilli: that's true, mr. chief justice. several points about that, though. we do agree with mr. long's analysis that davis occurred in

during a time in which under the standard nut case, the court had interpreted the anti- injunction act as doing no more than codifying the traditional equitable principles which allowed courts discretion to conclude that in certain circumstances, a case could go forward. williams packing repudiated that analysis, and bob jones v. simon again repudiated that analysis and said, no, we're no longer abiding by that. it is true that the davis case has not formally been overruled, but we do think it's fundamentally inconsistent with the court's understanding now of - justice breyer: davis was the case where a shareholder sues the corporation. general verrilli: yes. justice breyer: and the remedy is that the corporation shouldn't pay the money to the tax authority. now, it's a little technical, but that isn't actually an injunction against the tax authority collecting. he's not they're not restraining the collection

of tax. they're saying to the taxpayer, don't pay it. general verrilli: yes. and - justice breyer: i don't know how far that gets you. general verrilli: well, in fairness, justice breyer, the united states did intervene in the in the davis case and was a party, and so not as far as i'd like, i guess is the answer. justice scalia: don't do it again, because i think that goes too far. i don't think that's restraining the collection of a tax. it's restraining the payment of a tax. general verrilli: well - justice scalia: you you don't want to let that bone go, right? general verrilli: our view here is that it is jurisdictional. because it's jurisdictional as this court understands jurisdiction now, it's not waivable. and therefore, we don't think that that that part of the davis decision is good law. justice kagan: general, can i ask you about reed elsevier? justice ginsburg suggested that the language was very similar in reed elsevier as it is here, but there are even further similarities. reed elsevier

pointed out that the provision in question wasn't in title 28. here, too, it's not in title 28. in reed elsevier, it was pointed out that the provision there had numerous exceptions to it. here, too, there are numerous exceptions that we find that have been created by the courts over the years. in reed elsevier, the question was essentially one about timing. come to court after you file your registration. here, too, the question is one about timing. come to court after you make after you pay your taxes. so reed elsevier seems in multiple respects on all fours with this case. why is that wrong? general verrilli: i don't think so, justice kagan. first, we think i guess i'm repeating myself and i apologize, but we think the closest analogue is the very next provision in the united states code, 7422(a), which this court has held is jurisdictional, and is phrased in exactly the same way as 7421(a). in fact, as i said, they were the same provision

back in the earlier days. that's the closest analogue. this isn't and it's actually 7422 that's a statute that says do something first. but this - this statute is just a flat-out command that no suit shall be maintained to restrain - justice kagan: i take the point - general verrilli: the assessment or collection. justice kagan: bu if you would comment on the similarities of reed elsevier to this case. how do you think it's different, if at all? general verrilli: well, because the the i think the best answer to that is there are no magic words. and that history and context matter, as the court said in henderson. and the history and context here is that 7422 and 7421 function together to protect an exceedingly strong interest that that the court has held with respect to 7422 sufficiently strong that it it explains the jurisdictional nature of that. the same interest applies here. this isn't just a matter of do x and then you can and then you can come to court. it's just a fundamentally different set of

interests at stake. so we we do think that that makes a big difference. and - justice ginsburg: why, in reed elsevier, you were dividing jurisdiction from claims processing, says you have to register before you can sue. there are a lot of things you have to do before you can sue. so why isn't reed elsevier like you have to pay a filing fee before you can file a complaint? general verrilli: it is we do think it's very much in in that nature and different from this case, your honor. and one one way i think it's helpful to to get at this is is to look at the history. we've cited a string of court of appeals cases in a footnote in our opening brief, and over time, it's been very consistent that the courts of appeals have treated the anti-injunction act as a jurisdictional provision. again, if the court agrees with our statutory construction, you don't need to reach this issue. but they have in fact, one of those cases, the hansen case, the district court in that case had dismissed the complaint under federal rule of civil

procedure 12(b)(6). the court of appeals vacated and sent it back with instructions to dismiss under 12(b)(1), which is the subject matter jurisdiction provision. so i do think that, to the extent this issue is before the court, it is jurisdictional, but it doesn't need to be before the court because of the statutory construction argument that we had offered. justice ginsburg: on your statutory construction argument, is there any other exaction imposed under the internal revenue codes that would not qualify as a tax for anti- injunction act purposes, or is 5000a just out there all by itself? general verrilli: it's not quite out there all by itself. there are other provisions that fall outside of subchapter b of chapter 68 and, therefore, wouldn't be governed by the instruction in section 6671(a), which answers the question

about the applicability of the act for most penalties. the ones that we've identified, and i may be overlapping a little bit with mr. long here, one is 26 u.s.c. 857, which poses certain penalties in connection with the administration of real estate investment trusts. there are provisions that mr. long identified in his brief, sections 6038(a) through (c) of the code, which impose certain penalties with respect to reporting requirements for foreign corporations. we have, in addition, in footnote 22 at page 36 of our brief, identified three provisions that mr. long also identified about about alcohol and tobacco. now - justice sotomayor: could we address, general, the question of whether there are any collateral consequences for the failure to buy to not buy health insurance? is the only

consequence the payment of the penalty? the private respondents argue that there are other collateral consequences such as for people on probation who are disobeying the law, if they don't buy health insurance they would be disobeying the law and could be subject to having their supervised release revoked. general verrilli: yes. that is not a correct reading of the statute, justice sotomayor. the only consequence that ensues is the tax penalty. and the we have made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the treasury department and the department of health and human services, that there is no other consequence apart from the tax penalty. and i do think, if i could talk for a couple of minutes about the argument that was discussed as to whether this can be

conceived of as a suit just challenging the requirement, which is entirely stand-alone based on inferences drawn from the exemptions. i really don't think that's right. and if i could spend a minute on it, i think it's important. the exemptions in section 5000a, it is true that there are two categories of exemptions. there are exemptions to the penalty and exemptions to the subsection (a) requirement. but the but i think, not only as a practical matter, but as a textural indication and even as a legal matter, they both function as exceptions to the requirement. first, as a practical matter, one of those exemptions is a hardship exemption. and if the court will just bear with me for one minute here, it's at page 11a of the appendix to our brief. it provides that a person can go to the secretary of hhs and obtain a hardship

exemption for which would, as a formal matter here, excuse compliance with the penalty. it seems to me to make very little sense to say that someone who has gone to an official of the united states and obtained an exemption would, nonetheless, be in a position of being a law breaker. we think another way in which you can get to the same conclusion slightly differently is by considering the provision on the prior page, 10a, which is 5000a 5000a(e)(3), members of indian tribes. members of indian tribes are exempt only from the penalty as a formal matter under the structure of the statute here; but, the reason for that is because members of indian tribes obtain their healthcare through the indian health service, which is a clinic-based system that doesn't involve insurance at all. it's an entirely different system. they were taken out of this statute because they get their healthcare through a different

system. and it doesn't make any sense to think that persons getting their health care through the indian health service are violating the law because -exempt only from the penalty, but still under a legal obligation to have insurance, when the whole point of this is that they're supposed to be in a clinic-based system. justice sotomayor: is your whole point that this was inartful drafting by congress; that, to the extent that there is an exemption under the penalty, it's an exemption from the legal obligation? general verrilli: i guess what i would say about it, your honor, is that the way in which this statute is drafted doesn't permit the inference that my friends from the nib are trying to draw from it. and there is an additional textural indication of that, which one can find at page 13 of our reply brief. this is a provision that is 42 u.s.c. a, section 18022(e). this is a provision that provides for a certification that certain

individuals can get. and it's the paragraph starting with the words "other provisions," contains the quote. and it says: "an individual with a certification that the individual is exempt from the requirement under section 5000a, by reason of section 5000a(e)(1) of such code, is entitled to a certificate that allows for enrollment in a particular program for this category of people." but you can see here, congress is saying it's an exemption under 5000a(e)(1), which is the exemption from the penalty, and not the underlying requirement is, as congress says, an exemption from the requirement of section 5000a. >> sub-section a says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." and you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under the obligation to maintain the minimum essential coverage? >> that's correct.

and we think that is what congress is saying, both in the provision i just pointed to, your honor, and by virtue of the way -- by virtue of the way the exemptions work. i just think that's the -- reading this in context, that is the stronger reading of the statute. >> suppose it makes it easy for the government to drop the other shoe in the future, right? you have been under the law subject to this mandate all along. you have been exempt from the penalty, so all they have to do is take away the penalty. so, don't -- i don't think mr. chief justice. i don't think it makes it easy for the government in the future. we think this is the fairest reading of the statute, that the -- that the - you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have insurance. that's just not the fairest reading of the statute. >> could i - >> i'm sorry, go ahead.

go ahead. >> the nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute doesn't do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law? >> no. our position is that person should give the answer "no." >> and that's because - >> that if they don't pay the tax, they violated a federal law. >> but as long as they pay the penalty - >> if they pay the tax, then they are in compliance with the law. >> why do you keep saying tax? [laughter] >> if they pay the tax penalty, they're in compliance with the law. >> thank you. >> thank you, justice breyer. >> the penalty. >> right. that's right. >> suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants

medical care -goes to the emergency room, and the hospital says, well, fine, you are eligible for medicaid, enroll in medicaid. and the person says, no, i don't want that. i want to continue to get -- just get care here from the emergency room. will the hospital be able to point to the mandate and say, well, you're obligated to enroll? >> no, i don't think so, justice alito, for the same reason i just gave. i think that the -- that the answer in that situation is that that person, assuming that person -- well, if that person is eligible for medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore - >> no, they are not facing the tax penalty. >> right, right. >> so the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in medicaid. >> right. >> will they be able to take this out and say, well, you really should -- you have a moral obligation to do it. the congress of the united states has said, you have to enroll? no, they can't say?

>> i do think it's -- i think it's certainly fair to say that congress wants people in that position to sign up for medicaid. i think that's absolutely right. and i think the statute is structured to accomplish that objective. but, the reality still is that the only consequence of noncompliance is the penalty. >> general, but i thought the people who were eligible for medicaid weren't subject to the penalty. am i wrong? wrong. >> well, it all -- the penalty is keyed to income. >> yes. >> and it's keyed to a number of things. one is, are -- are you making so little money that you aren't obligated to file a tax return. and if you're in that situation, you are not subject to the penalty. it's also if the cost of insurance would be more than 8 percent of your income, you aren't subject to the penalty. so there -- there -- there isn't necessarily a precise mapping between somebody's income level and their medicaid eligibility at the present moment. that will depend on where things are and what the eligibility requirements are in the state. >> but those people below - >> but as a general matter, for

people below the poverty line it's almost inconceivable that they are ever going to be subject to the penalty, and they would, after the act's medicaid reforms go into place, be eligible for medicaid. at that point. >> so is your point that the tax -- so, what we want to do is get money from these people. most of them get the money by buying the insurance and that will help pay. but if they don't, they are going to pay this penalty, and that will help, too. and the fact that we put the latter in brings it within the taxing power. and as far as this act is concerned about the injunction, they called it a penalty and not a tax for a reason. they wanted it to fall outside that, it's in a different chapter, et cetera. is that what the heart of what you are saying? >> that's the essence they called it a penalty. they didn't give any other textural instruction in the affordable care act or in the internal revenue code or that that penalty should be treated as a tax for the anti- injunction act purpose. >> you agree with mr. long, and, in fact, you just agreed with justice breyer that one of the purposes of the provision is to

raise revenue. >> it will -- well, it will raise revenue. it has been predicted by the cbo that it will raise revenue, your honor. but even though that's the case, and i think that would be true of any -- of any penalty, that it will raise some revenue, but even though that's the case, there still needs to be textural instruction in the statute that this penalty should be treated as a tax for anti- injunction act purposes, and that's what is lacking here. >> after this takes effect, there may be a lot of people who are assessed the penalty and disagree either with whether they should be assessed the penalty at all, or with the calculation of the amount of their penalty. so under your interpretation of the act, all of them can now go to court? none of them are barred by the anti-injunction act? >> those are two different things, justice alito. i think for reasons that justice kennedy, i think, suggested in one of his questions to mr. long, all of the other doctrines that are an exhaustion of remedies and related doctrines would still be there.

the united states would rely on them in those circumstances. and -- and so, i don't think the answer is that they can all go to court, no. >> well, why is it - >> two former -- two former commissioners of the irs have filed a brief saying that your interpretation is going to lead to a flood of litigation. are they wrong on that? >> yes. we don't -- you know -- we've -- we've taken this position, after very careful consideration, and we've assessed the institutional interests of the united states and we think we are in the right place. >> but tell me something, why isn't this case subject to the same bars that -that you list in your brief? the tax court, at least so far, considers constitutional challenges to statutes, so why aren't we -- why isn't this case subject to a dismissal for failure to exhaust? >> because we don't -because the exhaustion would go to the situation from this case. questions. >> thank you.

>> mr. katsas. >> mr. chief justice, and may it please the court. whether the anti-injunction act is jurisdictional. justice ginsburg, for reasons you suggested, we think the text of the anti-injunction act is indistinguishable from the text of the statute that was unanimously held to be non- jurisdictional in reed elsevier. that statute said no suit shall be instituted. this statute says no suit shall be maintained. no - >> they are different things. this said the reed elsevier statute says immediately after instituted unless a >> unless -- instituted unless the copyright is registered. and this goes -- this goes to the character of the lawsuit. the statute in reed elsevier

says, register your copyright and then come back to court. >> why isn't that like a filing fee, before you can maintain a suit for copyright infringement, you have to register your copyright? >> it -- it's a precondition to filing suit. the -- the analogous precondition here is pay your taxes and then come back to court. the point is - >> no -- that -- that -that's not true. the suit here has nothing to do with hearing the action. it has to do with a form of relief that congress is barring. a tax case, you can come in afterwards. it's not permitting the court to exercise what otherwise would be one of its powers. >> it -- it has to be the same challenge, justice sotomayor, or else south carolina v. regan would say the anti-injunction act doesn't apply. you are right that once you file -- once you pay your taxes and then file the refund action, the act of filing the taxes converts the suit from one seeking prospective relief and to one seeking money damages.

and in that sense, you could remedial limitation on the courts. but whether you think of it as an exhaustion requirement or a remedial limitation, neither of jurisdictional. in davis v. passman you said that a remedial limitation doesn't go - >> it does seem strange to think of a -- a law that says no court can entertain a certain action and give a certain remedy as merely a claim processing rule. what the -- the court is being ousted from -- from what would otherwise be its power to hear something. >> the suit is being delayed, i think is the right way of looking at it. the jurisdictional apparatus in

the district court is present. prospective relief under 1331, money damages action under 1346. if the anti-injunction act were jurisdiction-ousting, one might have expected it to be in title 28 and to qualify those statutes and to use jurisdictional limits. >> how do you deal with this case and our gonzalez -- our recent gonzalez case where we talked about - right. >> -- the language of the coa statute that no appeal will be heard absent the issuance of? >> gonzalez -- gonzalez v. thaler rests on a special rule that applies with respect to appeals from one article iii court to another. that's -- that explains gonzalez and it explains bowles before it. you have five unanimous opinions in the last decade in which you have strongly gone the other direction on what counts as jurisdictional. >> there is an argument that we should just simply say that bowles applies only to appeals, but we haven't said that.

>> no, you came very close. in henderson, justice sotomayor, you said that bowles, which is akin to thaler is explained by the special rule and understandings governing appeals from one article iii court to another. and you specifically said that it does not apply to situations involving a party seeking initial judicial review of agency action, which is what we have here. so while you're right, the text in bowles and thaler are not terribly different, those cases are explained by that principle. under henderson it doesn't apply to this case. the text in this case speaks to the suit, the cause of action of the litigant. it doesn't speak to the jurisdiction or power of the court. the anti-injunction act is placed in a section of the tax code governing procedure. it's not placed in - >> counsel, all of those -all of that in particular - >> you did rely on that in reed

elsevier as one consideration. >> and we haven't relied on it in other cases. >> and another -- another that cuts in our favor is the presence of exceptions. you said three in reed elsevier cut against jurisdictional characterization. and - >> many of which themselves speak in very clear jurisdictional language. >> well, some of them have no jurisdictional language at all, and not a single one of them uses the word "jurisdiction" to describe the ability of the court to restrain the assessment and collection of taxes, which - >> basically it begs the difference -- language is relevant things. my mind is that taxes are, for blood of government. >> and so what congress is trying to do is to say there is a procedure here that you go

through. you can get your money back, or you go through the tax court, but don't do this in advance for the reason that we don't want 500 federal judge -judges substituting their idea of what is a proper equitable defense of when there should be an exception made about da, da, da for the basic rule. no. okay? and so there is strong reason that is there. you tried to apply that reason you can't find it. registration for the copyright register is not the life's blood of anything. copyright law exists regardless. so the reasoning isn't there. the language -- i see the similarity of language. i've got that. but it's the reasoning, the sort of underlying reason for not wanting a waiver here that --that is -- has a significant

role in my mind of finding that it is jurisdictional. plus the fact that we have said it nonstop since that northrop or whatever that other case is. >> justice breyer, as to reasoning, you -- you give an argument -- you give an argument why as a policy matter it might make sense to have a non-jurisdictional statute. but of course this court's recent cases time and again say congress has to clearly rank the statute as non-jurisdictional in its text and structure. to statutory policies doesn't speak with sufficient clarity >> that's fine. i just wanted to ask the question in case you wanted to answer the policy question. >> as to policy -- as to policy i think helvering against davis is the refutation of this view. the government doesn't want and congress doesn't want people coming into court. but davis shows there may be some cases including, for instance, constitutional challenges to landmark federal statutes where the government

sensibly decides that its revenue-raising purposes are better served by allowing a party to come into court and waiving its defense. that's what the solicitor general did in davis, and this court accepted that waiver. as for prior cases, we have the holding in davis and the holding in all of the equitable exception cases like williams packing. the government - >> so why don't we say -why don't we say it's jurisdictional except when the solicitor general waives? >> you have used - >> why would that not promote congress's policy of insuring -- or congress, explicitly - >> it's jurisdictional except when the solicitor general waives it?

>> yes. it's a contradiction in terms. i don't disagree. >> it is a contradiction in terms. all of your cases analyze the situation as if the statute is jurisdictional, then it's not subject to waiver. if you were to construe this as such a one-of unique statute, it seems to me we would still win because the solicitor general with full knowledge of the anti- injunction act argument available to him affirmatively gave it up. this is not just a forfeiture where a government lawyer is -- through inadvertence fails to raise an argument. government - >> they raised it and then gave it up. >> they made it below. they know what it is. and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other side. >> mr. katsas, is your basic position when we are talking about the jurisdiction of the district courts a statute has to jurisdictional? >> i wouldn't go quite that far. i think at a minimum it has --

it has to either say that or at least be directed to the courts which is a formulation you have used in your cases and which is the formulation that congress used in the tax injunction act but did not use in this statute. >> well, how would -- i mean, i suppose one could try to make a distinction between this case and reed elsevier by focusing on the difference between instituting something and maintaining something, and suggesting that instituting is more what a litigant does, and maintaining, as opposed to dismissing, is more of what judge does. >> i don't think so, justice kagan, because we -- we have an adversarial system, not an inquisitorial one. the parties maintain their lawsuits i think is the more natural way of thinking of it. if i could turn -- if i could turn to the merits question on the aia before my time runs out. the purpose of this lawsuit is to challenge a requirement -- a federal requirement to buy health insurance. that requirement itself is not a

tax. and for that reason alone, we think the anti-injunction act doesn't apply. what the amicus effectively seeks to do is extend the anti- injunction act, not just to taxes which is how the statute is written, but to free- standing nontax legal duties. and it's just - >> the whole point - the whole point of the suit is to prevent the collection of penalties. >> of taxes, mr. chief justice. >> well prevent of the collection of taxes. but the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make>> it's entirely separate, and let me explain to you why. >> it's a command. a mandate is a command. if there is nothing behind the command. it's sort of well what happens if you don't file the mandate? and the answer is nothing. it seems very artificial to separate the punishment from the crime. >> i'm not sure the answer is nothing, but even assuming it were nothing, it seems to me

there is a difference between enforcement consequences happen this statute was very deliberately written to separate mandate from penalty in several different ways. the mandate is described as a "legal requirement" no fewer than 20 times, three times in the operative text and 17 times in the findings. it's imposed through use of a mandatory verb "shall." the requirement is very well defined in the statute, so it can't be sloughed off as a general exhortation, and it's backed up by a penalty. congress then separated out mandate exceptions from penalty exceptions. it defined one category of people not subject to the mandate. one would think those are the category of people as to whom congress is saying, you need

notit then defined a separate to the penalty, but subject to the mandate. mean other than - >> why would you have a requirement that is completely toothless? you know, buy insurance or else. or else what? or else nothing. because congress reasonably could think that at least some people will follow the law precisely because it is the law. and let me give you an example of one category of person that are exempt from the penalty but subject to the mandate. mr. long says this must be a mandate exemption because it would be wholly harsh and unreasonable for congress to expect people who are very poor to comply with the requirement

to obtain health insurance when they have no means of doing so. that gets things exactly backwards. the very poor are the people congress would be most concerned about with respect to the mandate to the extent one of the justifications for the mandate is to prevent emergency room cost shifting when people receive uncompensated care. so they would have had very good reason to make the very poor subject to the mandate, and then they didn't do it in a draconian way. they gave the very poor a means of complying with the insurance medicaid system. >> mr. katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing? >> yes, i think that person would, because that person is injured by compliance with the what would the argument be as to what the injury was? >> the injury -- when that

subject to the mandate, that person is required to purchase that is a forced acquisition of an unwanted good. it's a classic pocketbook injury. but even if i'm wrong about that question, justice kagan, the question of who has standing to bring the challenge that we seek to bring seems to me very different -- your hypothetical plaintiff is very different from the actual plaintiffs. we have individuals who are planning for compliance in order to avoid a penalty, which is what their affidavits say. and we have the states, who will be subject no doubt to all sorts of adverse ramifications if they refuse to enroll in medicaid the people who are forced into medicaid by virtue of the mandate. so we don't have the problem of no adverse consequences in the case. and then, we have the separate distinction between the question of who has article iii standing in order to maintain a suit and to a legal obligation.

and you've said in your cases who has standing to challenge a legal obligation like the incompatibility clause or something, that doesn't somehow convert the legal obligation into a legal nullity. finally, with respect to the states, even if we are wrong about everything i've said so far, the states clearly fall within the exception recognized in south carolina v. regan. because the mandate forces 6 million new people onto their medicaid rolls. but they are not directly could they violate the mandate and incur a penalty. >> could i just understand, mr. katsas, when the states say that they are injured, are they talking about the people who are eligible now who are not enrolled? or are they also talking about eligible?

>> it's people who will enroll, enrolled had they been given a voluntary choice. >> but who are eligible now. -- now? >> that's the largest category. think there could be future eligibles who would enroll because they are subject to a have enrolled if given a voluntary choice. but i'm happy to -- i'm happy to focus on currently eligible people who haven't enrolled in medicaid. that particular class is the one injury on the order of 500 to>> but that does seem odd, to suggest that the state is being injured because people who could show up tomorrow with or without this law will -- will show up in greater numbers. i mean, presumably the state wants to cover people whom it has declared eligible for this>>

they -- they could, but they don't. what the state wants to do is make medicaid available to all who are eligible and choose to obtain it. and in any event - >> why would somebody not choose to obtain it? why -- that's one puzzle to me. there's this category of people who are medicaid eligible. medicaid doesn't cost them anything. why would they resist enrolling? >> i -- i don't know, justice ginsburg. all i know is that the difference between current enrollees and people who could enroll but have not is, as i said, on the -- is a $600 million delta. and - >> but it may be just that they haven't been given sufficient information to understand that this is a benefit for them. >> it's possible, but all we're talking about right now is the standing of the states. and the only arguments made against the standing of the states -- i mean, there is a classic pocketbook injury here. the only arguments made about --

against the standing of the states are number one, this results from third-party actions. that doesn't work, because the third-party actions are not unfettered in -- in the sense of lujan. they are coerced in the sense of bennett v. spear. those people are enrolling because they are under a legal obligation to do so. the second argument made against the states' standing is that the states somehow forfeit their ability to challenge the constitutionality of a provision of federal law because they voluntarily choose to participate - >> i'm -- i'm a little bit confused. and this is what i'm confused about. there -- there is a challenge to the individual mandate. >> yes. >> all right. what is -the fact that the state is challenging medicaid, how does it give the state standing to challenge an obligation that is not imposed on the state in any way?

>> the -- the principal theory for state standing is the states are challenging the mandate because the mandate injures them when people are forced to enroll in medicaid. now, it is true they are not directly subject to the mandate, but - >> yes. >> okay. let me -- let me try to >> i'm confused by it. >> let me try it this way -- may i finish the thought? >> in south carolina v. regan, the state was not subject to the tax at issue. the state was harmed because -- as the issuer of the bonds, and the bond holders were the ones subject to the tax. so the state is injured not because it is the direct object of the federal tax, but because of its relationship to the regulated party as issuer/bond holder. remaining. >> everyone agrees that the section 5000a penalty shall be assessed and collected in the same manner as taxes.

and the parties' principal the anti-injunction act simply goes to the secretary's activities. and i would simply ask, if -- if you look at chapters 63 and 64 of the internal revenue code which are the chapters on assessment and collection, they are not just addressed to the secretary. there are many provisions in there that are addressed to courts and indeed talk about this interaction, the very limited situations in which courts are permitted to restrain the assessment and collection of taxes. there was a statement made that there aren't -- and many of the exceptions to the anti- injunction act are in the assessment and collection provisions -- there was a statement made that none of these directly confer jurisdiction to restrain the assessment and collection of taxes. that's not true. in footnote 11 of our opening brief, we cite several.

i'll simply mention section 6213 as an example. that says -- i quote, "notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time that such prohibition is enforced, may be enjoined by a proceeding in the proper court, including the tax court. the tax court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for redetermination of the deficiency has been filed, and then only in respect of the deficiency that is the subject of such petition." >> and all that's going to really what i think congress's intent was meant to be in sticking the collection thing certainly an argument in your favor. the -the over-arching thing in my mind is it's -- it's up to

congress within leeway. and they did not use that word "tax," and they did have a couple of exceptions. and it is true that all this language that you quote -- you know, the first two sentences and so forth, it talks about the use of tax in the irc. it talks about the penalties and liabilities provided by this subchapter. and we look over here and it's a penalty and liability provided by a different law, which says collect it through the subchapter, and it has nothing to do with the irc. see? so we've got it in a separate place, we can see pretty clearly what they're trying to do. they couldn't really care very much about interfering with collecting this one. that's all the statutory argument. are you following me? you see? i'm trying to get you to focus on that kind of argument. >> i mean, i think i'm following you, but -- but the fact that it's not in the particular subchapter for assessable penalties in my view makes no difference, because they said it's still clearly -- it's assessed and collected in the same manner as the penalty in that subchapter, and those penalties are collected in the same manner as taxes.

>> yes, yes. >> and so that's -- i think it's -it's rather detailed, but i think it's a rather clear indication that the anti- injunction act applies. the -- the refund statute that does specifically refer to penalties, that has nothing to do with this argument that it's assessed and collected in the same manner as a tax. that would simply go to the point that well, you can't just call it a tax, because they've referred to it as a penalty. and finally, on jurisdiction, you know, i think the key point is we have a long line of this court's decisions that's really been ratified by congress with all these exceptions in jurisdictional terms. as i read bowles and john r. sand & gravel, the -- the gist of these decisions was not any special sort of rule about appeals, it's that when we have that situation, which i would submit applies as much to federal taxes as it does to appeals from federal district

courts when we have this degree of -- of precedent, including precedent from congress in the form of amendments to this anti- injunction act, that should be -- the presumption should be that this is jurisdictional. if there are no further questions. >> mr. long, you were invited by this court to defend the proposition that the anti- injunction act barred this litigation. you have ably carried out that responsibility, for which the>> thank you. this case tomorrow. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> now, we will hear from one of the attorneys to argue before the supreme court. it represents several groups. he argued that the tax penalty for enforcing the tax caro lock individual mandates can be challenged before it takes effect.

>> how are you? >> i am karen. i run a small business legal center. we are one of the plaintiffs in the lawsuit, and they are arguing on why the act does not apply to bar this lawsuit. do you want to give your impression of >> sure. the fairly technical jurisdictional issue, but the issue is whether or not the individual mandate is a tax. there is a special rule that makes it harder for litigants to challenge federal taxes. the president of the united states was very clear that this insurance mandate is not a tax. there is a requirement to buy health insurance. that is what we are challenging, backed up by a penalty. the penalty is not a tax. we think there is no bar to our coming into federal court to

challenge this unprecedented obligation to buy a good or service that consumers do not want. >> can you talk a little bit about the justices and what is? >> i think they asked a good questions on both sides. it is always hard to predict. i think the questioning was good. there was not anything that we had not anticipated. they certainly seemed to recognize a lot of the difficulties in the other side's position, but i am not going to make a prediction one way or another. >> justice roberts seems to take exception to the idea that the taxes do not matter, that you can go to the individual mandate without touching the tax. he seemed and fanatical about that. >> and justice kagan was very emphatic that the requirement is a requirement for the obvious

reasons. it is described as a requirement, backed up by a penalty. there are separate exemptions from the mandate and the penalty. there are good reasons why congress would have wanted to do it that way, and congress was less a nihilistic and people are suggesting. they understand about imposing legal obligations, because at least some people would choose to follow the law even if they would not be fine for breaking the law. >> your clients, from the mandate, the fact that there will be additional people taking advantage, they will be required to get coverage under medicaid. >> medicaid. that is one of the state's -- statess interest.

those that do not want to buy insurance, and as an organization that represents those individuals in its own right. >> what about the jurisdictional question. >> was the anti-injunction act is jurisdictional? they are arguing that the anti- injunction act does not apply, so every party to the case thinks the anti-injunction act does not apply, and they are the beneficiary of this statute, even they do not think it applies, so ordinarily, the court would not have to consider the issue at all because the government is not pursuing it. the only circumstance in which they would have to consider it against the wishes of all of the party is is whether it were jurisdictional, and the court has cut way back on what counts as being jurisdictional, exactly because it produces these very weird circumstances where courts

have to consider issues that nobody wants them to consider. >> was there anything that surprise you at all about today? >> no, not usually surprising. we spent a lot of time trying to think through all of the contingencies. pretty much. >> why does the court take this unusual step of hiring someone to argue is something. >> this goes to the question of jurisdiction. there is a least an argument that the anti-injunction act is jurisdictional. if it was jurisdictional, they would have to consider in on their own, so they wanted someone to support the point that it is jurisdictional and it does not apply. that is why they had to appoint the amicus, but the opera is of

the procedure of having to do something that way seems to me to a good reason for not having an ambiguous data to be jurisdictional, like this one. -- it seemed like there were a lot of skeptical questions of the other side of the jurisdictional point. but i think they asked me, i had some questions on those points, as well, so i do not want to draw to a strong inference from the question. we do think our position on this is strong. >> gregory katsas. the council for the private individuals and also being --

appearing today on behalf of the states, as well. see you tomorrow. >> now, we will hear from activists in favor and opposed to the health-care lock this spoke outside the supreme court following the first day of the argument. this is about 10 minutes. >> i am a reverend. rob schenck. president of the national clergy council here in washington, d.c. we represent church leaders from catholics, evangelicals, orthodox, and mainline

protestants on traditions. we were in the courtroom today to listen to the first day of arguments. it was a very spirited exchange, to say the least. there were some very humorous moments, some very tense moments. of course, the questions that are on the table today are arcane. difficult, new ones to leave the -- legal questions about the standing that you will hear from the attorneys general today. you'll hear from lawyers on those points, but we would like to make a much larger point, and that means this. while all of those are concerned that those have health care, the question is, whether in the process of delivering that health care to them you may trample on the rights of individuals to keep to the freedom of their own conscience

when it comes to the question of the mandate, whether the individual mandates or the mandate for religious organizations to cooperate with this particular law. you cannot get around the fact that it tramples on the freedom of conscience. to compel an individual to compromise their conscience is a fundamental violation of religious liberty. now, what i can tell you about the justices is that there were serious questions raised. we definitely have justice alito who asked serious questions about the issue of taxation. this is the equivalent of taxation. a lot of the justices were concerned about that point. their body language shows that they are deeply concerned about the definitions at stake in this

case. if it proceeds beyond today, as justice alito said, "today, you are you're arguing that this is not a tax. tomorrow, you will be your arguing that it is a tax." no one disagreed with that, so there is a problem already in definitions, in which definitions apply, but we are united in this. whether catholic, whether evangelical, like myself, whether protestant, we are in agreement. that this is a fundamental violation of the freedom of conscience. when the government compels an individual to pay money for something that violates a fundamental principle, such as the sanctity of human life, and we would agree, we would agree

with you on that, and you would agree with us. thank you for being an advocate. well, you will hear from that. >> let me make three quick points. first of all, ezekiel emanuel from the center of american progress and the university of pennsylvania. first of all, let me say it was quite clear from what the justices said that they want to decide this case and get past the anti-injunction act. they wanted to decide the merits of the case. second, just as briar made it clear -- justice breyer made it clear that what they are looking at is a penalty for not complying with the mandate. so the anti-injunction act does not apply. and it should be collected in a manner similar to taxes but that it was not a tax.

similarly, justice ginsburg said it applies to revenue because revenue is the lifeblood of government, and they do not want people to be able to sue before they pay taxes and basically cut off the government or not pay taxes, basically cut off the government's ability to act and that this penalty was not about revenue for the government, even though it will generate some revenue, that it was fundamentally about compliance with the law, and that, therefore, it was not a tax in the way that the anti- injunction act meant it to be. given that it was quite clear to name from both sides, the conservatives and others, that they want to hear the substance. they did not view the anti- injunction as a barrier of the case because we are not dealing with a tax or a tax or revenue. we are dealing with a penalty. i believe it was just as --

justice breyer. the court erupted, because it was quite clear that that was what he meant. i think it will proceed on the merits of the case and that we will not have the court said that we cannot decide because there has not been someone harmed by this situation. i would like now to turn it over to ron from families usa who was also in the court. he happens to be a lawyer. >> hi, so -- looking at a penalty or whether we are talking about a tax, it has the same effect on the conscience, on the liberty, and on the freedom of americans to make their own decisions on their fundamental conscientious objection to be compelled by the

government to compromise their most dearly held principles. that, i think, everyone of these people would agree with. you can pull them. can the government compromise your fundamental moral religious beliefs. i think there would be a unanimous no, they cannot do that. thank you very much. >> hi, i am with families usa. [cheers and applause] you can do better than that, too. cheers and applause the court was hearing today what many call a jurisdictional issue, and by a jurisdictional issue, it is whether the court has the ability to listen to this case, and the anti-injunction act in essence says if the legislation

at issue is a tax, then you can only challenge that once the tax liability is due. if there is somebody who does not comply with the provision would fall due in april 2015, so the question before the court was do we have to wait until april 2015, in essence, to hear the arguments about the constitutionality of the individual responsibility provision, and so, there were really two issues that the court was trying to work through. one is, is this a tax? and the enforcement of this is then through a tax that falls due in april. it is required under the internal revenue code, and you

pay it to the internal revenue service, so on the face of it, it looks like a tax. the second question is if it is a tax, is this jurisdictional? or are there any exceptions allowed, but i would say in terms of my own impression of the court is that while i think many of the justices believe that this is a tax, they do want to hear this argument. they will hear the argument. tomorrow, they will hear the argument about the constitutionality of the individual responsibility provision, and i think on both sides, both the government and as challenging the affordable care act feel this case should go forward. in any event, the argument will be held tomorrow about whether the individual responsibility provision is constitutional, and all of these issues will be

decided. and i am now going to turn this over to elizabeth. >> my name is elizabeth. i am chief counsel of the accountability center, and i represent more than 500 state legislators from every state in the country, the district of columbia, and puerto rico, who support the affordable care at an strongly disagree with the 26 states that have challenged the constitutionality. and i was there in the court today, and i agree with my colleagues that i think the court will likely not block the issue by applying in die injunction act and will instead get to the merits of the case, and so the real controversy and discussion will begin tomorrow when the court starts to listen to the merits of the case and, in particular, whether or not the minimum coverage provision or the so-called mandate is

constitutional, and the state legislators that i represent say that it is constitutional, that it is good for the state and the state citizens, and they are eager for the court to get to a decision on the merits, upholding the constitutionality of the affordable care act so they can continue with the work they are doing to implement the affordable care act and get millions of their residents access to quality, affordable health care, and when these arguments have but boat -- happen over the next few days, the man did argument and the argument on wednesday on whether or not this is an expansion of medicaid, which will allow 60 million more people access to quality, affordable health care, when we are hearing the arguments, and you see the lawyer from the 26 challenging states up there arguing that they do not like the affordable care act, i hope you will remember that those warriors do

not represent this state as a whole. there are many state leaders. there are more than 500 state legislators that i represent as well as other states and governors who strongly disagree with this year and think that the act is constitutional and that it is a great deal for the states and their system. thank you. i would never make a prediction about the supreme court because they always can surprise someone. witness citizens united. but i think that the majority of the justices, perhaps even unanimously, are ready to get to the merits of the case and will not apply the anti-injunction act. that seems to be the tenor of the argument today. >> are there any other questions?

>> thank you. >> thank you. >> the supreme court continues to hear oral arguments this week in a series of cases about the health-care law. the court will provide same-day audio expected around 1:00 p.m. each day, and we will have it for you on c-span3. tomorrow, a look at whether the individual mandate is constitutional. on wednesday, two questions before the court. on monday, can the rest of the loss survive? wednesday afternoon, if the expansion of the medicaid coverage an unconstitutional intrusion on the states? for more information, good to c- span.org. you can also join the conversation on facebook. cameras are currently not allowed in the supreme court, so we're asking if you would like coverage. to answer, good to

facebook.com/c-span's. -- facebook.com/c-span. a hearing is next on c-span. then, an update on general john allen on the situation in a afghanistan, and later, in case you missed it, today's supreme court oral argument on the health-care law. >> in march of 1979, c-span began televising the house of representatives to households nationwide, and today, are content of public affairs, non- fiction books, and public history is available on television, radio, and online. >> we are talking now about the supreme court, that they are the ones to change the country inevitably. the march towards knocking down the walls of discrimination that prevented us from passing the

civil rights act, so people it could go into restaurants and go into hotels. public accommodations. a 1965 act or voting rights. the 1973 act that says that women are going to be treated equally. the americans of disability act that says that the disabled are going to be part of the american family. all of that is progress. and, my friends, the one organization, the one institution, that protects it is the supreme court of the united states. >> c-span, created by american cable companies as a public service. >> now, a house hearing investigate the methods used by the transportation security administration to secure the country, including the use of body scanners at airports. officials from the tsa and the u.s. coast guard testify at this joint hearing held by the joint

oversight and transportation committee. this is about two hours. [gavel] >> the committee will come to order. the oversight committee exists to security of a fundamental principles. first, americans have a right to know that the money washington takes from them is well spent, and second, americans deserve an efficient, effective government that works for them. our duty on the committee is to protect these rights. our solemn responsibility is to hold government accountable to taxpayers, because taxpayers have a right to know what they get from their government. we will work tirelessly and partnership with citizen watchdogs to deliver the facts to the american people and bring genuine reform to the bureaucracy. this is our mission statement. today, we are calling the third hearing conducted by the

oversight committee. today, a joint hearing, where we plan to hold at least two additional tsa oversight hearings in april and may. there is no question that the tsa serves a vital role. the question is, in a post 9/11 period, are we getting value for our money? do we, in fact, have a system which is thorough and complete, that, in fact, takes care of all of us, or do we have a very expensive, labor intensive system that, in fact, is not making us appreciably safer? in a time of budget limitations, the tsa, all the essentials, must, in fact, deliver value to the american people. with more than 65,000 men and women working for tsa, it is not a small agency. this is more men and women

working for an aviation-based safety organization then build all of the ford automobiles and america combined. all the one-quarter of the funds used by tsa, from aviation -- used by tsa come from aviation fees. those you are flying pay a heavy price. there are landing fees and other collections, ticket fees, to run our airports. in fact, it is a high price to pay, a gordon, if you will, on our efficiency, so whether the dollars come from ticket fees or from the taxpayers directly, it is essential that we review the tsa effectiveness. by 2013, tsa will arguably by its own accounting have wasted $500 million of taxpayer money developing advanced imaging

technology or "ait machines." the are classified g-8 reports that painted a dire picture of ineffectiveness -- are classified gao reports. gao believes screening of passengers by observation techniques, which has already cost taxpayers $800 million, is ineffective. congress should consider limiting funds for this program. gao claimed tsa deployed spots before having solid scientific basis for its effectiveness. when it worked, it was only an accident. despite the potential $3.2 billion cost to the federal government, gao continues to find that tsa has failed to administer the edification credentials. i have seen this failure myself. i have seen a mandated id

waived, showing a picture id is not what congress mandated. deploying these and applying them in a way in which they are affected is essential. let's remember, at a cost a lot of money to produce the cards. using it as a high-priced id card is not acceptable. without creating a plan to upgrade the detection system, which will cost $964 million to the taxpayer, tsa cannot insure updating will be feasible or cost effective. let me reiterate. it is an important system. whether it is the inadvertent touching of fertilizer or a real operational use of explosives, we need to know and we need to screen. it is an effective tool if it

works. if it does not work 100 percent of the time, we have the biggest problem impossibly have. lastly, the visual intermodal prevention and response program faces serious questions from security experts and legal scholars about the effectiveness and constitutionality of this initiative. tsa is not performing or taking into serious consideration the cost benefits. that is a big part of what this committee is here to ask questions on today. not, might it work? but we do know is we have fielded products that do not work in the past. when it becomes known by the

public that a product has a flaw, that product becomes essentially useless. sadly, what we discover is even when it becomes public, there is no other tool. we continue screening people knowing that screening alone is not enough and the public knows that. with that, i recognize the chairman of the subcommittee on aviation infrastructure. >> thank you very much. thank you for organizing this important hearing and doing so with the transportation committee. after 9/11, the transportation committee held a number of hearings to attempt to determine what happened and what needed to be done.

it became very clear at those hearings that the existing federal policies of requiring easy access to the cockpit in case there was a medical emergency or something of that sort was not the most secure way to go. that policy was changed and now our cockpits are pardoned. it is difficult for a passenger to take over an airplane and turn it into a weapon. that is the most significant security changed since that time. beyond that, if it were to go to a football stadium or a cruise liner any sort of modes of transportation. we do have a security problem, but it is not restricted to airlines. the major part of the danger of

airlines, i think, was dealt with when it became impossible for people to take over and turn it into a weapon. of course, we have this regime that all of us experienced -- we are inspecting millions of travelers, hundreds of thousands every month, the same people over and over again. that has to be wasteful and intrusive. this has been going on now for 10 years. if it is going to go on for another 10 years, it behooves us to come up with a more efficient, less intrusive, more sensible program so that we concentrate on where there might be a risk rather than inspecting the same people over and over again.

when we had hearings back at the time of 9/11, experts testified before the transportation committee from israel and in a number of other countries that have faced very heightened security threats. all the things they advised, we have not done. trying to track people when they buy tickets. working on the intelligence side of things to see if there is some sort of a likelihood that that person might be a risk. ways of inspecting people and how they behave, not just at the airports. looking at how they interact with ticket agents. there are a lot more strategic

and intelligent ways to go about this. then spending hundreds of millions of dollars. changing the psychology of americans to have been starting to feel that they have done something wrong and there been subject to shakedowns. as we do when you're worried about someone who has committed a crime. we are assuming everybody is

guilty and treating them like prisoners. they are american taxpaying citizens. i feel that we have a lot to do to straighten this mess out. it is not a cost-effective approach. after 10 years, we owe more to the american people. >> thank you for having this hearing. >> i ask unanimous consent that our colleague from tennessee be allowed to participate in today's hearing. i will note that the ranking members of each of the committee's are driving and and have been delayed. it is not a flight as far as i know. they will make their opening statement after our witnesses. i am sure they will be your guide then. with that, i would like to introduce our first panel. mr. steven sadler, the transportation security administration. mr. steven lord is the director

for homeland security of the u.s. government accountability office. rear admiral is the u.s. coast guard and the assistant commandant a former marine safety security and stewardship. pursuant to the rules of this committee, would you all please rise to take the oath? raise your right hand. do you solemnly swear the testimony you're about to give is the truth and nothing but the truth? let the record indicate that all witnesses answered in the affirmative.

my predecessor's face is up there. he began a tradition of explaining the obvious. he did it every time and i appreciated it. your entire opening statements will be placed in the record. in front of you, you have the countdown clock. like so many things that you looked at, doesn't really matter? the answer is please summarize if you run out of time. we would like to get through all of you out of here in a timely fashion. you have five minutes. >> good afternoon. thank you for the opportunity to testify today. tsa has made significant strides in our utilization over the past year. automatic target recognition software, and passenger privacy while streamlining the checkpoint screening process. in the fall of 2011, my office began to develop performance

targets. tied to this, we implemented a plan to increase utilization across the nation. as a result of these efforts, at our performance between february 2011 and february 2012 improved by 200%. in addition, we are employing technology to automatically verify passenger documents. it will eventually replace the current procedures used to detect altered documents. we will deploy this technology for operational testing beginning next month. technology is only one mechanism to identify potential threats. the spot program uses behavior observation and analysis to identify high-risk individuals who may pose a threat to transportation security.

spot was scientifically validated in 2011 by the science and technology division. represent the most thorough analysis of any screening program to date. no other counter-terrorism program is not to have been subjected to such a rigorous evaluation. the study revealed that spot was significantly more effective at identifying high-risk passengers than random screening protocols. subsequent to the validation study, we took steps last fall to enhance the program. under a new pilot, the behavior detection officers employed a special interview technique. this interaction enables officers to better verify or dispel concerns about suspicious behavior and anomalies. preliminary analysis shows an increase in the rate of

detection of high risk passengerst. sa is conducting an analysis with the directorate to inform the validation process. completing this program deployment, we have begun teaching a tactical communications course for our front line workforce. this training focuses on active listening, empathy, and will be complete by the end of 2012. these initiatives are some of the key aspects that provide the backbone for our overall risk based strategy. this strategy demonstrates our commitment to move away from the one size fits all security model. this approach was necessary after 9/11 and has been effective over the past decade, we will move towards a more intuitive solution. the widely known is the pre-

check. 600,000 passengers have experienced an expedited screening. by the end of 2012, we expect to offer passengers the benefits. we just expanded to include active duty u.s. military traveling out of reagan national airport. in addition, last fall we implemented this screening procedures for children 12 and under, allowing them to leave their shoes on and go through a less intrusive screening process. this last monday, we began testing simply modified procedures for passengers 75 and older. we're supporting efforts to test identity based screening for airline pilots. over 470,000 uniformed pilots have cleared security through the non crewmember program. these initiatives have allowed us to expedite the screening process for children, military,

frequent fliers, and the elderly. they resulted in fewer requirements and a significant reduction in patdowns. by enhancing the effectiveness of our current programs, tsa continues to work toward our goal of providing the most effective security and the most efficient ways. thank you for the opportunity to testify. i would like to introduce my colleague. >> the gentleman is recognized. >> good afternoon. i appreciate the opportunity to testify on some of the work we are doing in coordination with the united states coast guard to strengthen security. the transportation credential

program is an important security measure designed to ensure that individuals who pose a threat to security do not gain on escorted access. prior to this program, there was no standard verification or background check for entrance to a port. the identity verification requirements of the program supports the multi layer approach to protecting the nation's transportation systems and enhance security at airports. several key objectives were met during the initial rollout of the program in october of 2007. these include milestones for implementing enrollment sides, conducting assessments. on april 15, 2009, u.s. coast guard regulation implemented the requirement for all

unescorted workers in secure areas and all mariners to possess a valid. almost 2 million transportation workers have received them when applying for a hazardous material endorsement on a state issued commercial driver's license. hazmat applicants do not need to go to an enormous center predicting go directly to the state licensing agency to apply for this endorsement. 11 states have availed themselves of this capability. we also recently awarded the universal enrollment services contract. this new capability will allow individuals to apply for multiple programs at the same location. allow enrollment for new and

future programs. on may 31, 2011, we completed the required data collection phase. tsa gathered information from seven ports, 13 facilities. these sites provide data. the final report was submitted to congress february 27, 2012. this data provides a clear picture of the likely impact of using readers at maritime facilities. this pilot conclude that system's function properly when they are designed, installed, and operated in a manner consistent with the characteristic and business state of the vessel operation. thank you for the opportunity to testify. i look forward to your questions. >> thank you.

>> thank you, mr. chairman. thank you for inviting me here today to discuss the progress and related challenges and deploying three t security programs. my observations are based on a large body of work. i would first like to note that tsa have made some notable achievements since the 9/11 attacks. as the witnesses noted today, some remaining challenges still exist. the first program of like to discuss is the behavior detection program. also called spot. this program consists of over 3000 behavior detection officers that are deployed to over 160 u.s. airports. this program is a key part of tsa's efforts to focus more attention on dangerous behavior. much more work remains to fully validate, establish sound performance metrics, and assess costs and benefits. as we noted in our prior work,

all these additional steps could take several more years. as we noted in our report on the program, we deployed spot nationwide before determining whether it had a valid scientific basis. the good news is that they did complete an initial validation study in april of 2011. it concluded that the program was more effective than random screenings. however, it was not designed to fully answer the very important question of whether you can use behavior detection principles for counterterrorism purposes in the airport and are met. a scientific consensus does not exist. another key report recommendation was to develop

better performance measures. the importance of this is underscored by looking at the arrests made under the program. 27% of the 300 spots arrests made in 2010 were illegal aliens raising questions about mission focus. the second program i would like to discuss today is the body scanner program. advanced imaging technology. as you know, these scanners were deployed in response to the attempted christmas day attack. 640 of these units are now in place at over 160 airports. these machines provide superior benefits over metal detectors. earlier this year, we issued a classified report. most of the details are still classified, we agree to allow to note some of the details regarding the utilization for today's hearing. we found that some of these units had been used less than 30% of the days since their

inflation. in response to our report, we agreed to take steps to address these low utilization rates. the last program i would like to discuss today is the maritime biometric provincial program. in terms of progress, tsa has and rolled over 2 million maritime workers in the program. 2011 report identified a number of significant internal control weaknesses in background checking and used that we believe has limited the security benefits of the program. these weaknesses may have contributed to the breach of selected u.s. facilities during a covert test we conducted as part of this review. we recommended the strength in program controls as well as complete and effectiveness

study to clarify the current programs contributions to enhancing maritime security. dhs has established a working group to address are important report recommendations. we look forward to seeing the results of the committee's work. in closing ,tsa has established a number of security layers to thwart potential terrorist attacks. our past work has a defined in number of ways this could be strengthened. i am hoping that today's hearing can provide some additional insight on how these programs can be strengthened and made more cost-effective. mr. chairman, this concludes my statement. >> thank you. >> i am honored to appear before you today to speak about the coast guard's role in enforcing compliance of the transportation worker identification credential.

the twic program requires such all merchant mariners and transportation workers seeking unescorted access undergo a security check undersea at twic. it is required to 2700 regulatory facilities and 50 unregulated facilities. the transportation security administration has primary responsibility for the issue when it's oftwics, the coast guard has responsibility for ensuring compliance. the coast guard continues to conduct unannounced and announced inspections to ensure compliance. the coast guard has verified

more than 213,000 twics. in accordance with a safe port act, the pilot program was conducted to evaluate the feasibility and technical and operational impacts of implementing a system. electronic readers add another layer of security associated with the twic. tsa's report on the pilot program was delivered to congress on february 27. the coast guard is incorporating the results of the pilot. this will apply requires to

leverage security benefits and abilities. section 809 of the coast guard authorization act of 2010 and amended the original requirements. as elements of the coast guard issuance process relies upon data out receipts, the provision was neither self executing or easily implemented. the coast guard issued a policy letter in december of 2011 to remove the requirement to hold a twic for mariners inactive. the coast guard continues to work towards codification of this change to a rule making process. a gao report in may 2011 identified a weakness in identification. in response, we issued policy

towards the field finance directing for wrote investigation. a quick flash a of thetwic is not acceptable. electronic readers insure each person attempting to enter a facility is carrying a twic. we continue to work with our partners and state and local agencies to improve the program. by balancing a steadfast commitment to security, while facilitating commerce. thank you for the opportunity to appear before you today. i will be pleased to answer your questions. >> thank you. we will not recognize the gentleman from maryland for his opening statements. >> today, the oversight committee convened to examine measures to secure our nation's transportation networks. they must achieve a delicate balance. they must be effective in meeting the evolving threats posed by terrorists.

we also expect it to be responsive. since the terrible events of september 11, 2001, several attacks have been attempted against commercial planes. including the attempted bombing of christmas day 2009. northwest airlines flight 253 and the attempted bombing in 2010 of a cargo jet using a bomb disguised as an inkjet cartridge. these instances demonstrate the of all been threatstsa must counter. the 43,000 security officers must screen more than 2 million passengers every day in our nation's 450 airports. the vast majority of passengers pose no risk, these officers must find the equivalent of a needle in a haystack. tsa increase the deployment of advanced imaging and technology

systems to screen passengers for both metallic and nonmetallic press. they have developed the pre- check program to expedite screenings to low risk to travelers. i welcome the efforts to develop a more intelligent risk based approach. recognizing the enormity of the challenge they face, the agency develops new screening techniques, we must ensure that its tracks the appropriate balance between moving too quickly or moving too slowly to address new threats. today's hearing will review at the transportation work identification credentialed. when i served as chairman of the subcommittee on coast guard and maritime transportation, i convened hearings in 2007 and 2008 to review the rollout of twic.

unlike many screening techniques, congress mandated what became the twic program. there are now more than 2.1 million enrollees. they have paid approximately $280 million to implement this program. to close the security perimeter, we must implement the use of leaders so that these cards are not just expensive flash passes. twics are not issued to in eligible applicants. we must also view it in a broader maritime security context. it is meant to control land side access to secure areas of u.s. ports. there are many risks that approach our ports, particularly from the water side. none of the individuals on the

estimated 17 million small boats operating in our waters are required to carry a twic. none of foreign mariners carry twics. the coast guard must defend our coast, rusty thousand but see, respond to marine casualties rescue thousands at sea. this service of 42,000 active- duty officers do all this on a budget of less than $10 billion a year. less than 2% of the budget. they now face additional cuts. the coast guard does all we ask them to do. we cannot continue to stretch the service and assume they will never break.

i yelled back. thank you for your courtesy. >> first of all, thank you so much. i am honored to co-chair this hearing with you. sorry there was a little bit of a delay. i am pleased to be with you. thank you for your leadership. this is a very important agency that we have joint responsibility over. our committee has some limited oversight responsibility under

transportation, as you may recall. tsa was created -- i happen to chair the subcommittee on aviation in 2001 after the terrorist attacks. since that time, tsa has grown from 16,500 screeners and a small cadre of different transportation security activities, which would join together. it was a much smaller beginning. unfortunately, tsa has mushroomed to 65,000 employees, of which there are 14,000 administrative personnel. 4000 in washington and 10,000 out and the fields. we never intended it to mushroom to this size. i have been critical of the administrative cost, we might be able to endure that kind of expenditure, which has now grown

to $8 billion. if that meant we were secure. instead, as this committee reports today, we have a number of programs that are so far behind, i would like to talk about the transportation worker identification card. hundreds of millions of dollars in limbo. some of the equipment that has been purchased does not do the job. i know we cannot talk about all of it in this open setting. the deployment of an ax -- acquisition of expensive and

equipment that is supposed to protect us the deployment could have better by a high-school class project. tsa has had five administrators in nine years. we had a period it when we had no administrator. it is difficult enough with an agency to operate with an administrator in washington. let alone not having an administrator for that period of time. i have other concerns, have been monitored this as closely as anyone in congress. we are still at risk. the nation is still address. unfortunately, even the layered

system -- almost every layer is flawed. the behavior detection, which i have worked with previous administrators to put in, we have equipment that did not work. tsa again bought equipment that did not work. i have had might investigative staff follow that. they have sat and a sad and we were paying rent on them. they were sitting in a warehouse, they spent $600 per piece of equipment. only after we prompted the actions. some investigators looked at another warehouse. we got information that it was full of equipment. the nerve to cause us to delay. i might even ask if we can not

get the information to subpoena. when you were informing tsa that we were sending our investigative staff -- as our investigators were appearing on the scene. it is a very expensive and disappointing operation. i had faith in administrator crystal. he promised reform. i do not see that happening, unfortunately. that is the highlight, mr. chairman. tos important that we get the bottom of this. there is a lot of hard-earned tax money going to theaters security, and not real security. we have to stop paying that price before we pay a huge price of a successful attack. >> i will not recognize myself for five minutes.

i have the advantage of knowing your bio. i spent nearly three decades in security. the one thing i know about security is there are two types. there is the type that convinces people that your target is harder than somebody's else's. i cannot protect all cars. that is what i would say you have is a system your today. you have a series of hardening spread the word sometimes, and i am speaking about the aviation. these programs certainly seem to be good programs. in every case, as the wind blows, those spots will stop targets.

targets are exactly like you would expect. they are mobile, responsive. if we do not have a layer of security system that has a sufficient force to rallies to be like a ship, one in which we know there will be a few leaks, but for the most part, it is watertight. our security system today is not watertight. the accidental catching of the bad guys belabors two points. the many people who find themselves going through security and sometimes they have us pull something out, and sometimes they do not. sometimes they do is secondary, sometimes they do not. we opened up this hearing to facebook. i am giving you anecdotal once. i will supply all of them and i will place them in the record. so you can respond to the

individuals. for example, joe is a u.s. marine. he was flying in his dress blues uniform. he was forced to remove his trousers in full view of passengers. it did not matter that he explained what it was. it did not matter that it was something that he had seen many times before. you and i know the turnover is high and the training is perpetual. the next one says, i am a disabled person and have been targeted for groping. my wife travels with a portable oxygen concentrator and to reduce of the machine means she

gets pawed by hand every time we travel. julia -- the tsa has taken away my freedom to travel because i wear a medical device and i cannot go the the amount of radiation i would be subjected to. there are plenty more. over 350. i am wendy. i have worn an artificial leg since i was four. i am now 61. i used to travel a lot for work, gave up traveling after being assaulted by tsa constant. the first question i have, 65,000 tsa workers. a quarter of them are employed

in administration. do you think that is a fair ratio or are you a bloated, bureaucratic organization that has a lot of people working and a lot of systems that do not work? >> thank you for recognizing the hard-working men and women of tsa. i will have to take a ratio for administrative to front-line personnel. i think it might be different from that. >> when i travel, obviously, to a number of places. houston, sacramento, san diego. i can tell you that i periodically count. for four active checkpoint in

san diego, there will be 35 people standing there. wouldn't you agree, based on your own observations, the amount of people directly at a checkpoint versus the total number is extremely high? you have not created any efficiency in the 10 years of your existence. >> i do not agree with that. tsa is working hard -- >> let's go through the numbers. there are four times as many employees as there was seven or eight years ago. correct? >> i do not believe -- >> 16,000 in your initial authorization. 2005, still below 35,000. you are now over 65,000. in the last five years, have the american people seem shorter

lines? yes or no? >> i do believe they have seen shorter lines in the last four or five years. >> i would like you to check your figures. they have not seen a shorter lines. you are not given shorter lines. you are taking longer for each one and using more people. with that, i recognize the ranking member for his question. >> thank you very much. tsa the recently completed a test required by the safe port act. to maximize the security, and we must move to implement the use of the readers. tsa was responsible for the recent pilot test. the coast guard is responsible for the final reader role.

will it be feasible for facilities to install readers that can quickly read twic cards? i think it seems like we ought to get this done, gentlemen, in some type of way. we have been messing round with this for a while. >> i would be pleased to answer that. we have embarked upon a rule making process. getting to a final rule. before we did that, we need to adjudicate the comments. that will be very informative. with the objective of not seeing commerce. there are over 32 recognized commercial twic readers. one of the concerns will be whether you use a mobile system

or a fixed system. we would envision approximately two-year period of time from the time a final rule was on the street to full implementation across industry. >> do you have a response? >> we did showed that when the readers were installed properly, the people were trained properly, and the workers were assimilated to the use of the cards, they did work properly. they did not impede the flow of commerce in those particular parts. it does depend on the installation, on the training, it does depend on whether the facility has picked the right reader. >> the employees were successful and accessing -- let me ask you this.

i want you to clarify. in individual ports, to the have the responsibility to deny admission to those who have valid and authentic twics if they have no business on the property? >> that is correct. >> what steps has the coast guard taken to address the gao's findings? do you think it will help to close the security gaps? >> i do. they have been out in the field during spot checks. we have done over 200,000 of the spot checks. last week, we ran over 450 spot checks. out of those 450, we found 58 members who had no business being at those particular facilities. we engage extensively with our

stakeholders. the facility owners. we are interested in those who may have criminal intent, which is one of the information's that twic provides. the card holders are being screened against the terror screening data base. there is real time information and a benefit to the facility owners. >> it is the only part of our maritime security -- and that is very significant. the coast guard will be the most important element of that regime. the strain of budget cuts on the

service are obvious. in 2010, at 10 of the 12th suffered significant problems and had to be taken out of service. is that right? >> i was involved with that response. >> these are required by the safe port at to be established by october. the inspector general and others have noted the coast guard's inability to meet safety and security emission requirements in the arctic as the ice cover opens to allow more shipping operations in those latitudes. nonetheless, the president's budget -- this budget will conclude the acquisitions of the fast response and a number below the approved program record. this is my last question. i know the coast guard strive to meet every mission requirements. can you comment on the challenges the service is facing and balancing its

competing commission and means and the maritime security arena at in light of the significant budget constraints? i have always complained about the coast guard having not enough money. >> i would be pleased. i was involved in the deepwater horizon oil spill. the president directed that we tripled our response efforts. we are constantly doing front- line operations. we had the good fortune, if you want to call it that, where we did not have another contingency occurring at the same time. i was able to redeploy and marshal all those resources into the gulf of mexico.

we were able to do the same during the earthquake in haiti and hurricane katrina. the challenges we face is what if we have multiple threats? what if we had a hurricane and then we have a threat to national security? taking place concurrently. that is where we run into resource challenges. we have to reallocate resources from one mission to another. we do not have the resources to do both. >> we now recognize the chairman of the committee for five minutes. >> my friends at tsa, since my last hearing, the appropriations subcommittee, i was not a member of that subcommittee, but was allowed to ask questions. >> we recommend that system to

all committees. >> the funny thing about that, mr. chairman, tsa found out i would be a witness. they send an e-mail. the e-mail said, when he asks a question, take a long time answering act. so you eat up his time. the problem is that sometimes you think it is the gang that can shoot straight. they shot the e-mail to cq. reserving my time, if you would answer fairly briefly, one of my concerns, of course, is that transportation worker

identification card. we spent over half a billion dollars, is that correct? $511 million. >> we have spent approximately hundred $74 million. >> i have $500 million. >> you may be including grants. >> in the neighborhood of half a billion. the card is supposed to allow us to identify who goes into our ports. we passed the law, setting that requirement up, after 2001, right? >> i believe that was required. >> thank you. they have produced 9.1 million of the cards are active. they printed 3.1 million of

them. we still do not have all the components that were required under the law, including iris and thumbprint as far as biometric capability, do we? >> we have capability as far as the card -- >> you do not have a standard for iras -- iris, is that right? this is not going to be "groundhog day," but i had a hearing april 14, almost a year ago.

we had the director of the information technology lab testify, and my question was when would you finish the iris capability? hopefully by the end of the week. and when will you finish the standard? >> by the end of the year. >> i do not have a time. >> they told us the summer. so, we're now going into our ninth year. reproduced the card, -- we produced the card, but then i read you are still in a pilot reader program, so, basically we have 1.1 million of these cards and we do not have readers.

is that correct? we do not have readers? >> just to go back a second -- >> do they have readers? >> certain parts to have readers. >> how many of these cards are able to be read? >> we know the pilot ports have readers. i do not know outside of the pilot course -- >> at this time, a very small number of courts in fact have readers. >> without objection, so ordered. >> thank you. behavior detection. let me go into this.

i will just take one more minute. behavior technician program. we spent $1 billion in. can someone say that that is correct? >> i believe that number is slightly below, but we will get back to you. >> alright. alright, i will ask you. when i knew that the puffers would not work, and it did not detect trace elements that were put on me, they told me it was just a technical problem. we just destroyed those, is that correct? we paid the police $600 -- $600,000 to destroy these? >> that is correct. >> they had dod destroy them. getting something else in place because the technology did not

work, and you all have seen the classified reports and the reports on the advanced imaging technology. is that correct? >> yes. >> perino by that performance, that lack -- we know by that performance, that lack of performance, will we have seen with the puffers, that is very successful, but the problem is gao viewed the performance and saw 24 times 17 known terrorists went through airports and yet they have yet to detect one terrorist. and that was a question submitted by one of the floridians. we had an open question online. "can you name any terrorist that you actually -- can you name any terrorist that you actually stopped in the program? >> while we accept gao's

assertion, we do not know that those individuals went through a the time, and they were not operational, said they were not manifesting signs of distraction. >> can i comment on that? in the gao representative, and i think our point was to study the travel patterns people associate with terrorists to see if they were exhibiting behavior is. at this time, i do not think it is known whether they were exhibiting behaviors or not. we suggested that reviewing the video tapes, we thought that would be a rich source of information to help define the program.

at this point, mr. chairman, i will also ask unanimous consent to put in the record, we went up and looked in boston where they had a demonstration project. i think there's the one in detroit. there was unbelievable -- >> without objection. >> also passed -- >> without objection, that will be placed into the record. >> i would like to go to my colleague from the select intelligence committee who knows probably more than anyone on the dais what the skills are to read someone who may be a terrorist. and the gentleman is recognized. >> thank you. you may have overstated that a bit. >> no, i remember our time behind closed doors. you were the senior statesman their. >> i appreciate that. >> i appreciate that. what we do, mr. chairman, it is